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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGFLES 


SCHOOL  OF  LAW 
LIBRARY 


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THE  LAW 


LA^TDLOED  A^TD  teMKT 


A  COURSE  or  LECTURES  DELIYERED  AT  THE 
LAW  INSTITUTION. 


JOHN  WILLIAM  SMITH, 

LATE    OF    THE    INNER    TEMPLE,    BARRISTER-AT-LAW. 


NOTES  AND  ADDITIONS 

BY 

FKEDEEIC   PHILIP   MAUDE, 

OF   THE    INNER   TEMPLE,    BARRISTER-AT-LAW. 

WITH   NOTES   AND    EEFEEENCES   TO   THE   AMEEIGAN    CASES 

BY 

PHIXEAS  PEMBERTON  MORRIS. 


PHILADELPHIA: 

T.   &   J.W.   JOHNS  O^  &  C  0 . 

197  CHESTNUT  STREET. 
1856. 


I 

Snt 


Entered,  according  to  Act  of  Congress,  in  the  year  1856, 

BY  T.  &  J.  W.  JOHNSON  &  Co., 
in  the  Clerk's  OflSce  of  the  District  Court  for  the  Eastern  District  of  Pennsylvania. 


KING   &   BAIRD,    PRINTKRS,    SANSOII    STREET. 


PHEFACE, 


The  following  Lectures  on  the  law  of  Landlord  and 
Tenant  were  delivered  by  the  late  Mr.  John  William 
Smith,  at  the  Law  Institution,  in  the  years  1841  and 
1842. 

They  are  printed  as  they  were  left  by  the  Author  ; 
all  the  authorities  referred  to  by  him  being  inserted  in 
the  text. 

The  Editor  is  responsible  for  the  foot-notes,  for  those 

portions  of  the  text  which  are  included  within  brackets, 

and  for  the  headings  to  the  Lectures,  and  the  marginal 
notes. 

The  new  matter  inserted  in  the  foot-notes  has  been 
added  chiefly  with  the  view  of  showing  the  alterations 
in  the  law  since  the  Lectures  were  dehvered,  and  the 
practical  application,  in  the  later  decisions,  of  the 
principles  mentioned  in  the  text.  The  Editor  has  also 
endeavoured,  by  the  addition  of  many  of  the  earlier 
cases,  to  make  the  work  more  useful,  not  only  for 
Students,  but  as  a  Circuit  Companion. 


IV  PREFACE. 

It  was  thought  that  the  insertion  of  these  additions 
in  the  text  would  break  up,  inconveniently,  the  broad 
general  statements  of  the  law  of  which  it  mainly 
consists ;  and  it  was  also  felt  to  be  desirable  that  this 
new  matter  should  be  distinctly  separated  from  the 
original  work. 

The  references  to  Coke  upon  Littleton  are  made  to 
the  edition  of  1823,  by  Hargrave  and  Butler,  and  those 
to  Blackstone's  Commentaries  relate  to  the  edition  of 
1825,  by  Mr.  Justice  Coleridge. 

F.  P.  M. 

Inner  Temple,  Aj  HI,  1855. 


PREFACE   TO  THE  AMERICAN  EDITION, 


These  lectures  are  marked  by  the  best  characteristics 
of  Mr.  Smith's  style,  combining  comprehensiveness, 
perspicuity  and  brevity  in  an  admirable  manner. 

In  presenting  the  American  Edition  to  the  public, 
it  has  been  the  aim  of  the  Editor  to  illustrate  the  text 
by  reference  to  the  American  authorities,  keeping 
always  in  view  the  Author's  plan  of  confining  the 
work  within  reasonable  limits.  There  will  be  found 
therefore  but  little  dissertation  in  the  notes,  but  it  is 
hoped  an  ample  reference  to  authorities  as  illustrating 
principles. 

P.  P.  M. 

Philadelphia,  February,  1856. 


CONTENTS. 


LECTURE    I, 


The  pages  referred  to  are  those  between  (     ). 


PAGE 

General  Yiew  of  Tenures  ....  1 
Meaning  of  terms  "  Landlord 

and  Tenant" 3 

Freehold  Tenancies 5 

Tenancy  in  Fee  Simple 5 

Statute  of  Quia  Emptores 5 

Tenancy  in  Fee  Tail 6 

Tenancy  for  Life 6 

Tenancies  less  than  Freehold  8 

Origin-  of. 8 

Origin  of  Action  of  Ejectment  9 

Tenancy  for  Years 12 

Interesse  Termini 13 


page 
Must  be  for  a  Time  certain...  14 

Tenancy  at  Will 15 

Determination  of 16 

By  Implication 18 

Tenancy  from  Year  to  Year..  20 

Origin  of 20 

Emblements - 20 

Notice  to  cjuit 21 

Presumption  of  Tenancy  from 

Payment  of  Rent 21 

Assignment  of. 23 

Tenancy  by  Sufferance 25 

Never  arises  by  Contract....  26 


LECTURE   II. 


Points  Relating  to  Creation 
OP  Tenancy 30 

Who  may  be  Lessors 31 

Tenants  in  Tail 32 

Enabling  Statute 33 

Requisites  of  Leases  under...  33 
Fines  and  Recoveries  Act. . .  35 

Tenants  for  Life 36 

Ecclesiastical  Persons 37 

Enabling  Statute 37 

Disabling  Statutes 37 

Husbands  leasing  Wife's  Land  40 
Persons  acting  under  Powers  42 

Statute  of  Uses 42 

Effects  of  Leases  under  Pow- 
ers    44 

Guardians  in  Socage 40 


Testamentary  Guardians 46 

Executors  and  Administrators  46 

Persons  NoN  Compos 47 

Married  Women 47 

Infants 48 

Leases  by,  voidable  only 48 

Joint  Tenants  and  Tenants  in 

Common 49 

Parish  OflScers 50 

Who  may  be  Lessees 52 

Infants 53 

Married  Women 55 

Aliens 56 

Denizens 56 

What  May  be  Leased 57 

Things  which  lie  in  Grant. ...  58 

Things  wliich  lie  in  Livery. . .  58 


Vlll 


CONTENTS. 


LECTURE    III. 


PAGE 

Points    relating  to   Creation 

OF  Tenancy  (continued) 59 

The  Mode  in  which    Demises 

ARE   effected CO 

By  Deed,  by  "Writing  without 
Seal,  and  by  Parol 60 

Effect  of  the  Statute  of 
Frauds,  and  of  the  8  & 
9  Vic.  c.  106 62 

Effect  upon  Demise  of  Non- 
compliance with  Statute  of 

Frauds 65 

Requisites  to  all  Leases 67 

Proper  words  of  Demise 67 

Intention  to  be  looked  to. . . .  69 


PAGE 

Difference     between     Leases 

and  Agreements 70 

Stamps 72 

Agreements  for  a  Lease  can- 
not be  by  Parol  only 75 

Usual  Incidents 77 

The  Premises 77 

The  Recitals 78 

The  Habendum 82 

Period  at  which   Term  com- 
mences    83 

Duration  of  Term 84 

Option  to  dt^ ermine  at  End 

of  a  certain  Period 86 

Who  may  exercise  it 86 


LECTURE   IV. 


Points  relating  to    Creation 

OF  Tenancy  (continued) 

Usual  Incidents  to    Demises 

(continued) 

The  Reddendum 

Nature  of  Rent 

Different  Kinds  of  Rent 

Rent-service 

Distinction  between  Reserv- 
ations and  Exceptions 

General  Rule  that  Rent  can- 
not issue  out  of  an  incor- 
poreal Hereditament 

Exceptions  to  Rule 

Rent  must  be    reserved   to 

Lessor 

The  Covenants 

For  Payment  of  Rent 

Other  usual  Covenants 

To  pay  Taxes  and  Tithe- 
Rent  Charge 

To  Insure 

Not  to  carry  on  particular 
Trades, 


91 
92 

94 
94 
96 

97 

98 
100 

101' 


Exceptions  out  of  Demise.. .  103 
Provisoes  and  Conditions. . .   105 

Implied  Conditions 105 

Conditions  precedent 106 

Conditions  subsequent, 107 

Powers  of  Re-entry 108 

Waiver  of  Forfeiture 109 

By  Receipt  of  Rent,  &c 109 

Distinction  between    Leases 

void  and  voidable  only.. . .  Ill 
Distinction  now  overruled. . .   112 

Condition  not  to  assign 115 

How  broken 115 

Effect  of  a  License  to  assign  117 
Distinction  between    Condi- 
tions not  to  assign  and  not 

to  underlet 118 

Re-entry  upon  Non-payment 

of  Rent .^  119 

At  Common  Law 119 

Under  the  4  Geo.  2,  c.  28; 
and  the  15  &  16  Yict. 
c.  76 120 


CONTENTS. 


IX 


LECTURE    V. 


Points  Relating  to  Continu- 
ance OF  Tenancy 124 

Rights  of  Landlord 124 

As  to  Payment  of  Rent 125 

Tirae  at  which  Rent  is  payable  125 

Mode  of  Payment 127 

Rent  a  Debt  of  a  high  nature  128 
Effect  of   taking   a  Bill   or 

Note  in  Payment 128 

Amount  of  Payment 129 

Deductions  which  Tenant  is 

entitled  to  make 129 

Land-Tax 133 

Income-Tax 133 

Tithe  Rent-Charge 133 

Apportionment 133 

Remedies  for  enforcing  Pay- 
ment OF  Rent 136 

By  Action. 138 

Use  and  Occupation 139 


page 

By  Distress 141 

What  the  Landlord  may  Dis- 

train 141 

General  rule  as  to  Chattels 

personal 141 

Exceptions 142 

Things  absolutely  protected.   142 
Things  conditionally  protec- 
ted  149 

Growing  Crops 149 

Where  the  Landlord  may  dis- 
train     152 

General  Rule 153 

Exceptions 153 

Distress  on  Goods  fraudu- 
lently removed 154 

Distress  on  Cattle  on  Com- 
mons, &c.,  belonging  to 
Premises 156 


LECTU 

Points  Relating  to  Continu- 
ance OF  Tenancy  (continued)  157 
Remedy     by     Distress     (con- 
tinued)    158 

When  the  Landlord  may  dis- 
train   158 

Forehand  Rent 158 

Time  of  Day  at  which  Dis- 
tress may  be  made 159 

After  Expiration  of  Tenancy  160 
Effect  of  the  8  Anne,  c.  14,  s.  6  160 
How  the  Landlord  may  Dis- 
train   162 

Warrant 164 

Outer  Door  must  be  open. . .  165 

Seizure 166 

Inventory 166 

Notice 166 

Seizure  of  Goods  fraudulently 

removed 168 

What  the  Landlord  must  do 
with  the  Distress 171 


HE    VI. 

Power  of  Landlord  at  Com- 
mon Law 171 

Statutory  Liability  to  provide 
Food  for  Cattle  distrained  173 

Statutory      Alterations      of 
Power  of  Landlord 174 

Right  to  Impound  on  Pre- 
mises    175 

Impounding      of      Growing 
Crops 177 

Appraisement  and  Sale 178 

Remedies   of    Tenant    for    a 

Wrongful  Distress 180 

Where  Distress  is  irregular. ,   180 

Where    no    Right   to     Dis- 
train    182 

Where     Distress    is     by    a 
Stranger 182 

Where  Distress  is  by  Land- 
lord   182 

Proceedings  in  Replevin 183 

Bond 185 


CONTENTS. 


LECTURE    VII. 


PAGE 

Points  Relating  to  Gontinu- 

ANCE  OF  Tenancy  (contiQued)  187 

Rights   of    Landlord    as    to 

Repairs  and  Cultivation..  188 

Where    no    Express    Agree- 
ment    189 

Repairs,  &c 189 

Waste.. 190 

At  Common  Law 190 

By  Statute 191 

Toluntary 192 

Permissive 192 

By  Tenants  for  Life 192 

Not  Liable  for  Damage  by 

Tempest,  &c 194 

By  Tenants  for  Years 195 

Teoants  at  Will  cannot  Com- 
mit   197 

Accidental  Fire 198 

Where  there  is  an  Express 

Agreement 199 


PAGE 

When  Tenant  is  bound  to 

rebuild  after  Fire 202 

Cultivation 203 

Custom  of  Country  and  Ex- 
press Agreements 203 

Demise     without     Impeach- 
ment of  Waste 204 

Remedies    of    Landlord    for 

Non-Repair,  etc 204 

By  Action 205 

By  Injunction 205 

Rights     of     Tenant    against 

Landlord 205 

Right  to  Possession  and  Quiet 

Enjoyment 206 

Remedies  for  Disturbance..  209 
Limit  to  Landlord's  Implied 
Guarantee    against    Evic- 
tion, &c 210 

Effect  of  Express  Contracts 
against  Eviction,  &c 212 


LECTURE    VIIL 


Points  Relating  to  Determi- 
nation OF  the  Tenancy 215 

Ways  in  which  Tenancy  may 

Deterotne 215 

By  Effluxion  of  Time 216 

Adverse  Possession  since  the 

3&4  Wm.  4,c.27 216 

Yearly  Tenancy  upon  a  Hold- 
ing over 219 

By  Surrender 222 

Express 223 

At  Common  Law 224 

Since  Statute  of  Frauds,  and 

the  8  &  9  Yic.  c.  106 224 

By  Operation  of  Law 225 

By  taking  a  new  Lease 225 

By  other  Acts 226 

Rights  of  third  Parties  not 

affected 231 

Effect  upon  Rights  of  Sur- 
renderor    231 


For  Purpose  of  Renewal...  232 

By  Forfeiture 233 

Disclaimer 233 

By  Notice  to  Quit 234 

When  to  be  given 234 

In  what  Form 237 

Effect  of  Mistakes  in 237 

How  Served 239 

How  Waived 240 

By  Receipt  of  Rent 240 

By  Distress,  &c 240 

Rights  of  Parties  on  Deter- 
mination OF  Tenancy 241 

Right  of  Landlord  to  Posses- 
sion   241 

Small  Tenements  Acts 243 

Proceedings    under    the    11 

Geo.  2,  c.  19,  s.  16 244 

Double  Yalue 244 

Double  Rent 245 


CONTENTS. 


XI 


LECTURE  IX. 


PAGE 

Rights  of  Parties  on  Determi- 
nation OF  Tenancy  (con- 
tinued)    247 

Emblements 247 

Where  there  is  no  Contract.  248 
"When  they  may  be  claimed.  249 
Not  when  Tenancy  is  deter- 
mined by  act  of  Tenant. ..  251 
Out   of  what   they  may  be 

claimed 253 

Entry  to  take  them 256 

Where  there  is  a   Contract 

express  or  implied 256 

Custom  of  the  Country 256 

Way-going  Crops' 256 


PAGE 

Fixtures 262 

Where    no    express   Agree- 
ment   262 

Annexations  to  Fi'eehold. . .   262 

Eelaxation  of  Rule  as  to 264 

Tenant's  Fixtures 264 

Eules  for  determining  what 

are 266 

Trade  Fixtures 267 

Wider  Rule  with  respect  to.  267 

Agricultural  Fixtures 270 

When  Removal  must  be  made  272 
Where  express  Agreement. .  274 
Valuation 275 


LECTURE  X. 


Points  relating  to  a  change  of 

Parties  to  the  Demise 277 

Contracts  not  assignable.. . .  278 

Exceptions 278 

Estates  assignable 279 

Assignment 279 

By  act  of  Parties 279 

How  effected 279 

By  Landlord 280 

Attornment 280 

Notice  to  Tena,nt 281 

By  Tenant 281 

Effect  of  Statute  of  Frauds, 

and  of  the  8  &  9  Vic.  c.  106  281 
Consequences  of  Assignment  282 

At  Common  Law 282 

Since  the  32  Hen.  8,  c.  34...  284 

Construction  of  Statute 285 

Covenants  running  with  Land 
and  with  Reversion 286 


Implied  Covenants 287 

Express  Covenants 288 

Effect    of   "Assigns"   being 

mentioned 289 

Position  of  Assignor  and  As- 
signee   292 

Lessee  still  liable  on  express 

Covenants 293 

Otherwise   with    respect    to 

Assignee 294 

Assignment  of  part  of  Land  295 

Of  part  of  Reversion, 296 

Of  Reversion  in  part  of  Land  296 
Conditions  not  apportionable  297 

By  Act  of  Law 297 

By  Death  of  Lessor 297 

By  Death  of  Lessee 299 

Liability  of  Executor 300 

By  Bankruptcy 302 

By  Insolvency 305 


EKEATA. 

Page    37,  note,  fifth  line,  for  "  demesne"  read  "  domain." 

"      38,     "      second  line,  for  "powers"  read  "rules  of  property." 

"      90,     "      thirteenth  line,  for  "  not  exceeding  two  years,"  read  "  not 

exceeding  twenty-one  years." 
"    102,     «'      ninth  and  tenth  lines,  for  "  8  and  9  Vict,  c.  106,  s.  5,"  read 

"  8  and  9  Vict.,  c.  106,  s.  4." 
"    245,     "     eleventh    line,   after  the    words    "Judge    Woodward    who 

delivers  the  opinion  of  the  Court,"  read  "  in  Irving  vs. 

Covode." 


TABLE    OF    CASES 


The  pages  referred  to  are  those  within  (     ). 


Abbey  v.  Petcli,  152 
Ackland  v.  Lutley,  84 
Acton's  Case,  37 
Adams  v  Grane,  146 
Alcenius  v.  Nygren,  57 
Aldenburgh  v.  Peaple,  160 
Alford  V.  Vickery,  237,  240 
Allen  V.  Flicker,  179 

V.  Sharp,  183 

Amfield  v.  White,  98 
Andrew  v.  Pearce,  208 
Andrew's  Case,  211,  298 
Anon,  195,  299 

V.  Cooper,  162 

Ansell  V.  Robson,  302 
Ardea  v.  PuUen,  206 
Arnsby  v.  "Woodward,  113 
Ash  V  Dawnay,  176 
Ashcroft  V.  Bourne,  244 
Ashmore  v.  Hardy,  170 
Attorney  General  v.  Cox,  232 
V.  Duke  of  Marl- 
borough, 189 
Auriol  V.  Mills,  292,  304 
Austen  v.  Howard,  185 
Auworth  V.  Johnson,  195,  196 
Aveline  v.  Whisson,  97 
Avenell  v.  Croker,  179, 180 

B. 

Bachelour  v.  Gage,  293 
Badely  v.  Vigurs,  296 


Bagge  V.  Mawby,  163 
Bailey  v.  Mason,  115 
Baker  v.  Dewey,  81 

V  Greeuhill,  98 

V.  Heard,  81 

V.  Holtzapffell,  140,  206 

V.  Walker,  128 

Ball  V.  Cullimore,  16 
Bally  V.  Wells,  118,  290 
Bandy  v.  Cartwright,  207 
Barclay  v.  Raine,  290 
Barden's  Case,  251 
Barnard  v.  Godscall,  293 
Barnfather  v.  Jordan,  294 
Barrett  v.  Barrett,  193 
V.  Rolph,  282 


Barwick  v.  Foster,  134 
Basten  v.  Carew,  244 
Baxter  v.  Browne,  69 
Bayley  v.  Bradley,  32,  81 
Beale  v.  Sanders,  65,  66,  221 
Beavan  v.  Delahay,  161,  257,  261 
V.  M'Donnell,  48 


Beckett  v.  Bradley,  78 
Beck  V.  Rebow,  267 
Beely  v.  Purry,  280 
Beer  v.  Beer,  49,  51,  137 
Belfour  v.  Weston,  140,  206 
Berkeley  v.  Hardy,  66,  78 
Berrey  v.  Lindley,  22,  65,  66,  235 
Bertie  v.  Beaumont,  14,  140 
Bessell  v.  Landsberg,  224,  235 
Beverley's  Case,  47 


XIV 


TABLE     OF     CASES. 


Billinghurst  v.  Speerman,  300 
Bickibrd  v.  Parsou,  285,  294 
Biustead  v.  Buck,  148 
Bird  V.  Higginson,  61,  92 
Bisco  V.  Holte,  37 
Bishop  V.  Bryant,  179 

V.  Howard,  23 

Birch  V.  Wright,  139 
Blyth  V.  Dennett,  111,  241 

V.  Smith,  202 

Bolton  (Lord)  v.  Tomliu,  64,  66,  76 
Boodle  V.  Cambell,  130,  212 
Boone,  v.  Eyre,  107 
Boraston  v.  Green,  257,  258 
Borradaile  v.  Hunter,  97 
Botting  V.  Martin,  282 
Bowman  v.  Taylor,  78 
Bracegirdle  ii.  Heald,  64 
Bradburne  v.  Botfield,  51 
Bradbury  v.  Wright,  89,  90,  98 
Braithwaite  v.  Cooksey,  160 
Braythwayte  v.  Hitchcock,  24 
Brandon  v.  Nesbitt,  57 
Brett  V.  Cumberland,  293 
Brewster  v.  Kitchell,  98,  99 
Briggs  V.  Sowry,  148,  164,  304,  305 
Brittain  v.  Lloyd,  131,  132 
Bromley  v.  Holden,  155 
Brook  V.  Bulkeley,  288 

V.  Spong,  15,  108,  249 

Brooker  v.  Scott,  55 
Brown  v.  Amyot,  137 
Brown  v.  Arundell,  147 

V.  Glen,  165 

V.  Notley,  14 

V.  Shevill,  146 

V.  Story,  281 

V.  Powell,  176 

Browning  v.  Beston,  81 

V.  Dann,  165 

Brummel  v.  Macpherson,  117 

Buckley  v.  Taylor,  159 

Bull  V.  Sibbs,  140 

Buckland  v.  Butterfield,  266,  268 

Buckley  v.  Nightingale,  299 

V.  Pirk,  288,  301 


Bullock  V.  Dommitt,  202 
Bulwer  v.  Bulwer,  249,  250,  251 
Bunch  V.  Kennington,  149 
Burdett  v.  Withers,  200 
Burnett  v.  Lynch.  209,  295 
Burton  v.  Brooks,  19 
V.  Reevell,  63 


Bushell  V.  Beavan,  78 

c. 

Cadby  v.  Martinez,  235,  239 
Caldecott  v.  Smythies,  257 
Campbell  v.  Lewis,  288 
Cannock  v.  Jones,  96,  201 
Canterbury  (Viscount)  v.  The  Attor- 
ney-General, 199 
Capel  V.  Buszard,  153 
Carpenter  v.  Buller,  78,  79 
V.  Oolins,  17 


Carter  v.  Carter,  132 
V.  Warne,  302 


Cartwright  v.  Smith,  170 
Chapman  v.  Bluck,  71 
Chapman  v.  Towner,  23,  71 
Charters  v.  Sherrock,  159 
Chesterfield  (Earl  of)  v.  Duke  of 

Bolton,  202. 
Christ's  Hospital  (Governors  of  w. 

Harrild,  89,  98. 
Christy  v.  Tancred,  141 
Church  V.  Brown,  116 
Clark  V.  Gaskarth,  152 

V.  Hume,  302 

V.  Woods,  164 

Clarke  v.  Roystone,  203,  260 
V.  Webb,  303 


Clayton's  Case,  83 

Clayton  v.  Blakey,  17,  65 

Clift  V.  Schwabe,  97 

Clun's  Case,  126,  127,  134 

Cobb  V.  Stokes,  216 

Cockson  V.  Cock,  290 

Coe  V.  Clay,  207 

Colegrave  v.  Dias  Santos,  265,  267 

OolUns  V  Crouch,  300 

Cooch  V.  Goodman,  97 


TABLE     OF     CASES. 


XV 


Congleton  (Mayor  of)  v.  Pattison, 

288,  289 
Cooper  V.  Eobinson,  83 
Copeland  v.  Stephens,  302 
Cottee  V.  Eiclaardson,  282 
Coulson  V.  White,  205 
Courtney  v.  Taylor,  96 
Cox  V.  Bent,  23 
— —  V.  Painter,  176 
Creagh  v.  Blood,  229 
Cromwell's  (Lord)  Case,  105 
Crosier  v.  Tompkinson,  148 
Cross  V.  Jordan,  121 
Crowley  v.  Yitty,  244 
Crowther  v.  Ramsbottom,  3  65 
Crusoe  v.  Bugby,  116 
Culling  V.  Tuffnal,  275 
Cumming  v.  Bedborough,  100,  131, 

133 
Curtis  V.  Wheeler,  162 
Cutter  V.  Powell,  107 
Cutting  V.  Derby,  125 

D 

Dalby  v.  Hirst,  262 
Dalton  V.  Whittem,  145 
Daniel  v.  Grawiie,  74,  95, 162. 
Dann  v.  Spurrier,  86 
Darby  v.  Harris,  143,  267 
Darcy  (Lord)  v.  Askwith,  192 
Darlington  v.  Pritchard,  243 
Davis  V.  Burrell,  99,  243 

V.  Eyton,  116,  250,  251 

V.  Gyde,  129 

V.  Jones,  275 

Davies  v.  Powell,  148 
Davison  v.  Stanley,  226 

V.  Wilson,  243 

Dawson  v.  Cropp,  163 

V.  Dyer,  209 

Dayrell  v.  Hoare,  45 
Dean  v.  Allalley,  269 
De  Medina  v.  Norman,  207 
Denn  v  Cartright,  236 
Deptford  (Churchwardens  of)  v. 
Sketchley,  52 


Dibble  v.  Bowater,  127, 155,  170 
Dodd  v.  Acklora,  230 
Doe  V.  Alexander,  121 

V.  Amey,  23,  203,  204,  221 

V,  Augell,  20,  163,  219 

V.  Archer,  36 

V.  Carew,  116 

V.  Carter,  17,  20,  116,  219 

V.  Chamberlain,  18 

V.  Clarke,  71 

V.  Collinge,  37,  40 

V.  Cooper,  234 

V.  Courtenay,  22'6 

V.  Cox,  24,  25 

V.  Crago,  24 

V.  Crick,  237,  240 

V.  Culliford,  237,  238 

V.  Bancks,  112 

V.  Batten,  240 

V.  Bell,  65,  221 

V.  Benham,  52,  88,  16"2 

V.  Bevau,  116 

V.  Birch,  110,  111,  113 

V.  Bird,  101 

ij.  Bliss,  118,  119 

V.  Brown,  281 

V.  Bold,  20,  219 

V,  Bowditch,  120 

V.  Burliogton  (Lord),  193 

V.  Butcher,  36,  112 

V.  Davies,  24,  25 

V.  Day,  83 

V.  Dixon,  86 

V.  Dobell,  235 

V.  Donovan,  25 

V.  Dyson,  120 

V.  Dunbar,  239 

V.  Errington,  12,  49 

V.  Evans,  234 

V.  Forwood,  225 

V.  Foster,  52,  54,  237 

—  V.  Franks,  120 

—  V.  Fuchau,  120 

—  V.  Geekie,  236 

—  V.  Gladwin,  101,  110 

—  V.  Goldwin,  238,  239,  245 


XVI 


TABLE     OF     CASES. 


Doe  V.  Gower,  53 

Doe  V.  Price,  16,  17,  104 

V.  Green,  25,  235,  236 

V.  Pritchard,  119 

V.  Gwillim,  249 

V.  Pullen,  23 

V.  Gwinnell,  6 

V.  Pyke,  231 

V.  Hamilton,  52 

V.  Raffan,  24,  25 

V.  Hazell,  24 

V.  Eees,  109 

V.  Hinde,  88 

V.  Rhodes,  236 

V.  Hole,  45 

V.  Ries,  71 

V.  Howard,  236 

V.  Rock,  20 

V.  Hughes,  236,  237 

V.  Rollings,  31,  234 

V.  Htimplireys,  241 

V.  Rowlands,  201 

V.  lugleby,  116 

V.  Rugely,  116 

V.  Inglis,  241 

V.  Shewin,  100 

V.  Jenkins,  33 

V.  Smaridge,  236 

V.  Jackson,  238,  245 

■  V.  Smith,  236,  238 

V.  Johnson,  236 

V.  Somei-ville,  40 

V.  Jones,  17,  19,  11 0,  200 

V.  Spence,  236 

V.  Kightley,  235,  237 

V.  Spry,  101 

V.  Laming,  116 

V.  Stapleton,  236 

■ V.  Lawrence,  94 

V.  Steel,  241 

V.  Lea,  235 

V.  Steele,  82 

V.  Lewis,  110,  120 

V.  Stephens,  45 

V.  Lines,  222,  236 

V.  Sturges,  47 

V.  Lloyd,  92 

V.  Summersett,  237 

V.  Lock,  34,  45,  91,  104 

V.  Taniere,  23,  38 

I'.  Long,  234 

V.  Terry,  52 

V.  Marchetti,  233 

V.  Thomas,  17,  40,  225 

V.  Masters,  119 

V.  Turner,  16,  20,  219 

V.  Matthews,  236 

V.  Ulph,  83,  100 

V.  Menx,  110,  201 

V.  Walker,  13 

V.  Milward,  224,  227 

V.  Wandlass,  120 

V.  M'Kaeg,  19 

y.  Watkins,  236,  339 

V.  Mofifatt,  63,  222 

V.  Watts,  21,  22,  36 

V.  Moore,  20,  219 

V.  Webster,  53 

V.  Morphett,  236,  238 

V.  Wells,  233 

V.  Morris,  25 

V.  Williams,  34,  45,  115, 

161 

V.  Morse,  22 

234 

V.  Ongley,  23 

V.  Wilkinson,  238 

V.  Osenham,  163 

V.  Wilson,  121 

V.  Page,  20,  219 

V.  Wood,  24,  230 

V.  Palmer,  241 

V.  Woodbridge,  110 

?7.  Peck.  110,114,118 

V.  Woodman,  240 

V.  Phillips,  220 

V.  Worsley,  116 

V.  Poole,  226 

V.  Wrightman,  235 

V.  Porter,  21 

V.  Yarborough  (Lord),  40 

V.  Powell,  72 

d.  Cox,  V. ,  237 

TABLE     OF     CASES. 


XVll 


Doe  d.  Dixon  v,  v.  Eoe,  120 

.  d  Gretton,  v.  Roe,  121 

d.  Powell,  V.  Roe,  121 

Dormay  v.  Borradaile,  97 

Doubitofte  v.  Curteene,  92 

Doughty  V.  Bowman,  291 

Draper  v.  Crofts,  141 

Druce  v.  Denison,  41 

Dublin  and  Wicklow  Railway  Co. 

V.  Black,  49 
Duck  V.  Braddyll,  143 
Dunk  V.  Hunter,  70,  161 
Dunn  V.  Di  Nuovo,  212,  224 
Dumpor's  Case,  117,  134 
Duppa  V.  Mayo,  119,  126,  158,  290 
Durham   and   Sunderland   Railway 

Co.,  V.  Walker,  91,  104 
Dyke  v.  Sweeting,  299 

E. 

Eagleton,  v.  Gutteridge,  71 
Eccleston  v.  Olipsham,  52 
Edge  V.  Pemberton,  192 

V.  Strafford,  13,  75, 140 

Edmonds  v.  Challis,  183,  185 
Egerton  v.  Earl  Brownlow,  108 
Elliott  V.  Bishop,  262,  207,  275 

V.  Turner,  86 

ElUs  V.  Taylor,  176 

Elwes  V.  Mawe,  262,  269,  270,  271, 

273,  274 
Ely  (Dean  of)  v.  Cash,  163 
Eraott  V.  Cole,  92 
Empson  v.  Soden,  269 
Enys  V.  Donnithorne,  85 
Evans  v.  Elliot,  281 

V.  Roberts,  253 

Exall  V.  Partridge,  129 

F. 

Farewell  v.  Dickenson,  92 
Farmer  v.  Rogers,  224 
Faviell  v.  Gaskoin,  261,  276 
Fenton  v.  Logan,  149 
Field  V.  Adams,  149 
Filliter  v.  Phippard,  199 
2 


Finch  V.  Miller,  221 
Finch  V.  Throckmorton,  112 
Findon  v.  M'Laren,  147 
Firth  V.  Purvis,  176 
Fisher  v.  Dixon,  269 
Fitzgerald  v.  Fitzgerald,  41 
Fitzherbert  v.  Shaw,  273 
Fleming  v.  Snook,  205 
Fletcher  v.  Marillier,  155 
V.  Saunders,  179 


Foley  V.  Addenbrook,  52,  275 
Fordyce  v.  Bridges,  137 
Foster  v.  Spooner,  192 
Foquet  v.  Moor,  225 
Fowle  V.  Welsh,  213 
Franklin  v.  Carter,  133 
Freeman  v.  Rosher,  181 
Frusher  v.  Lee,  152 
Fryer  v.  Coombs,  45 
Furley  v.  Wood,  235 
Farneaux  v.  Fotherby,  154,  170 

G. 

Gage  V.  Acton,  128 
Gardiner  v.  Williamson,  61,  92 
Garrard  v.  Tuck,  220 
Geary  v.  Bearcroft,  14 
Gent  V.  Cutts,  185 
George  v.  Chambers,  183 
Gibson  v.  Courthope,  303 

V.  Ireson,  147 

V.  Kirk,  139 

V.  Wells,  196,  197 


Gifford  V.  Young,  299 
Giles  V.  Hooper,  96 
Gilman  v.  Elton,  145 
Gisbourn  v.  Hurst,  145 
Glen  V.  Dungey,  13,  73 
Goode  V.  Howells,  61 
Goodland  v.  Blewith,  127 
Goodright  v.  Cordweut,  240 

V.  Davids,  109 

V.  Mark,  86 

— ■ V.  Richardson,  148 

V.  Straphan,  48 


XVlll 


TABLE     OF     CASES. 


Goodtitle  v.  Herbert,  17 
Gore  L'.  Lloyd,  71 

V.  Wright,  212,  224 

Gorton  v.  Falkuer,  142,  149 
Gott  V.  Gandy,  196,  206 
Gould  V.  Bradstock,  165 
Gouldswortli  v.  Elliott,  52 
Graham  v.  Allsop,  130 

V.  Whichelo,  230 

Grainger  v.  Collins,  105 
Grant  v.  Ellis,  163 
Grantham  v.  Hawley,  250 
Graves  v.  Key,  81 

V.  Weld,  254 

Great  Northern  Eail way  Co.  v.  Har- 
rison, 96 
Greenaway  v.  Adams,  116 

V.  Hart,  292 

Greene  v.  Cole,  192, 197,  205 
Grescott  v.  Green,  295 
Griffenhoofe  v.  Daubuz,  100 
Griffin  v.  Scott,  179 
Griffith  V.  Goodhand,  97 
Griffiths  V.  Puleston,  161,  256,  261 
Grissell  v.  Robinson,  131 
Grymes  v.  Boweren,  264,  265 
Gulliver  v.  Cosens,  176 
Gutteridge  v.  Munyard,  200 


H. 

Haldane  v.  Johnson,  126 
Hall  V.  Burgess,  139 
Hallen  v.  Runder,  262,  273 
Hamerton  v.  Stead,  225 
Hancock  v.  Cafiyn,  209 
Hanson  v.  Stevenson,  302 
Harley  v.  King,  295 
Harnett  v.  Maitland,  197 
Harper  v.  Taswell,  179 
Harrington,  Earl  of.  In  re,  244 

V.  Ramsay,  244 

Harris  v.  Jones,  200 
Harrison  v.  Barnby,  52 


Harrison  v.  Fane,  55 
V.  Jackson,  66 


Harrold  v.  Whitaker,  52 
Hartley  v.  Moxham,  166 
Hartshorne  v.  Watson,  114 
Hart  V.  Windsor,  200,  206,  207 
Harvey  v.  Brydges,  242 
Harvey  v.  Harvey,  267 
Harvey  v.  Pocock,  145,  172 
Hastings  v.  Wilson,  302 
Hatch  V.  Hale,  165 
Hatter  v.  Ash,  83,  84 
Hapvard  v.  Haswell,  71 
Heap  V.  Barton,  269,  274 
Heatherley  v.  Weston,  49 
Hegan  v.  Johnson,  161 
Hellawell  v.  Eastwood,  143,  263,  267 

269 
Hellier  v.  Casbard,  96 
Heme  v.  Bembow,  197 
Hill  V.  Barclay,  116 
Hill  V.  Saunders,  41 
Hills  V.  Learning,  79 
Hindle  v.  Blades,  184 
Holder  v.  Taylor,  207 
Holmes  v.  Blogg.  54 
Holtzapffel-v.  Baker,  203 
Hopkinson  v.  Lee,  52 
Hopkins  v.  Prescott,  57 
Hopwood  V.  Whaley,  301 
Hornidge  v.  Wilson,  301 
Horsefall  v.  Testar,  201 
Hough  V.  May,  127 
How  V.  Kennett,  303 
Howard  v.  Shaw,  18,  139 
~  V.  Wemsley,  235 


Huffell  V.  Armistead,  25,  237 
Hull  V.  Vaughan,  140 
Humfrey  v.  Gery,  163 
Hunt  V.  Bishop,  108,  201 
Hunter  v.  Hunt,  132 
Huntley  v.  Russell,  193,  271 
Hutchius  V.  Chambers,  181 
V.  Scott,  166 


Hutton  V.  Warren,  203,  258,  262 
Hyatt  v.  Griffiths,  204,  222 


TABLE     OF     CASES. 


XIX 


Iggulden  V.  May,  97 
Ireland  v.  Bircham,  210 

V.  Higgius,  148 

Isherwood  v.  Oldknow,  44 
Izon  V.  Gorton,  140,  202,  235 


Jackson  i'.  Cator,  205 

V.  Cobbin,  105 

V.  Hanson,  184 

Jeffrey  v.  Bastard,  184 

Jenner  v.  Clegg,  240 

Jervis  v.  Bruton,  189 

Jevens  v.  Harridge,  56 

Jewel's  Case,  92,  95 

Johnson  V.  Faulkner,  150 

Johnson  v,  Jones,  129 

Johnstone  v.  Huddlestone,  224,  227, 

229,  235,  246 
Jones  V.  Carter,  110,  114 

V.  Chapman,  243 

V.  Hill,  197 

V.  Marsh,  239 

-  V.  Morris,  130 

V.  Reynolds,  71 

V.  Thorne,  101 

Joule  V.  Jackson,  147 
Jourdain  v.  Wilson,  290 

K 

Keating  v.  Keating,  47 

Keates  v.  The  Earl  of  Cadogan,  196 

Keech  v.  Hall,  281 

Keightley  v.  Watson,  51 

Kenney  v.  May,  180 

Kerby  v.  Harding,  166,  167 

Keyse  v.  Powell,  13 

Ketsey's  Case,  53,  54 

Kidwelly  v.  Brand,  296 

King  V.  Jones,  298 

Kingdon  v.  Nottle,  298 

Kingston's  (Dutchess  of)  Case,  78 

Kinnersley  v.  Orpe,  116 

Kinsbury  v.  Collins,  235,  251 


Kirtland  v.  Pounsett,  140 
Kirton  v.  Elliott,  54 
Knevett  v.  Poole,  251 
Knight  V.  Bennett,  161 
Knight's  Case,  94 
Knipe  v.  Palmer,  48 


Ladd  V.  Thomas,  176 
Lainson  v.  Tremere,  78,79 
Lampon  v.  Corke,  78,  81 
Lane  v.  Dixon,  144,  263 
Lapierre  v.  Mcintosh,  56 
Latham  v.  Atwood,  253 
Lawton  v.  Lawton,  265 
V.  Salmon,  269 


Layton  v.  Hurry,  174 
Leach  v.  Thomas,  196 
Lee  V.  Smith,  22,  63,  159 
Leeds  v.  Cheetham,  140,  203,  206 
Leftly  V.  Mills,  125 
Legh  V.  Heald,  103,  104 
Lekeux  v.  Nash,  294 
Lewis  V.  Campbell,  131 
V.  Smith,  213 


Liford's  Case,  103 
Litchfield  v.  Eeady,  281 
Lloyd  V.  Crispe,  119 
V.  Rosbee,  245 


Logan  V.  Hall,  202 
Loudon  (Mayor  of)  v.  Hedger,  205 
Lougher  v,  Williams  288,  297,  298 
Lovelock  V.  Franklyn,  73 
Lowe  V.  Griffith,  53,  54 
V.  Ross,  13,  140 


Lowndes  v.  Earl  of  Stamford,  138 

Lubbock  V.  Tribe,  131 

Lucas  V.  Nockells,  165 

Lyde  v.  Russell,  273 

Lyon  V.  Reed,  226,  228,  229,  230 

V.  Weldon,  180 

M. 

Machell  v.  Clarke,  33 
Macher  v.  The  Foundling  Hospital 
117 


XX 


TABLE     OF     CASES. 


Macldntosh  v.  Trotter,  263,  273 

Magennis  r.  McCullogh.  225 

Maguay  v.  Edwards,  289 

Mann  v.  Lovejoy,  73 

Manning  v.  Flight,  305 

Mansfield  (Earl  of)  v.  Blackburne, 

269,  275 
Mantle  v.  Wallington,  49 
Mantz  V.  Goring,  200 
Markby,  In  re,  137 
Marriott  v.  Coston,  201 
Martin  v.  Gilliam,  192 
Martyn  v.  Bradley,  275 
Mason  v.  Newland,  174 
Masters  v.  Farris,  182 
Matthias  v.  Mesnard,  145 
Mayho  v.  Biickhurst,  286 
Mechelen  v.  "Wallace,  76 
Meggison  v.  Lady  Glamis,  61,  92 
Merrill  v.  Frame,  206,  207,  213 
Messenger  v.  Armstrong,  216 
Messent  v.  Reynolds,  105,  207 
Micklethwait  v.  Winter,  105 
Middlemore  v.  Goodale,  288 
Miller  v.  Green,  150 
Mills  V.  Goff,  238 
Milward  v.  Caffin,  104 
Minshall  v.  Lloyd,  273 
M'Kenzie  v.  M'Leod,  202 
Molton  V.  Camroux,  48 
Morgan  v.  Bissell,  71 

V.  Pike,  98 

Morley  v.  Pincombe,  143 
Morris  v.  Crouch,  184 
Morrison  v.  Chadwick,  212,  224,  230 
Mortimer  v.  Hartley,  86 
Moss  V.  Gallimore,  166,281 
Mounson  v.  Eedshaw,  185 
Mountjoy  v.  Collier,  141,  245 
Mungean  v.  Wheatley,  183 
Mnsgrave  v.  Emmerson,  89 
Muspratt  v.  Gregory,  147 

N. 

Xash  V.  Palmer,  213 
Naylor  v.  CoUinge,  275 


Neal  V.  Eatcliffi?,  96,  201 
Xeale  v.  Mackenzie,  61,  68,  212 

V.  Wyllie,  201 

Nepean  v.  Doe,  20,  27,  163,  218 
Newcomb  v.  Harvey,  162 
Newman  v.  Anderton,  92 
Xewry  &  Enniskillen  Railway  Co. 

V.  Coombe,  49,  54 
Newton  v.  AlUn,  212 

V.  Harland,  242,  243 

V.  Scott,  164,  305 


Niblett  V.  Smith,  143 
Nickells  v.  Atherstone,  230 
North    Western    Railway 

M 'Michael,  49,  55 
Norton  v.  Acklane,  293 
Nuttall  V.  Staunton,  160 

O. 

Gates  V.  Frith,  94 
Odell  V.  Wake,  294 
Gland's  Case,  249,  251 
Oldershaw  v.  Holt,  137 
Onslow  V.  Corrie,  303. 
Opperman  v.  Smith,  154 
Orby  V.  Mohuu,  95 
Orme  v.  Broughton,  298 
Owen  V.  Barrow,  127 

V.  De  Beauvoir,  163 

V.  Legh,  150 


Co. 


P. 

Packer  v.  Gibbins,  140,  203 
Packington's  Case,  204 
Page  V.  Godden,  302 

V.  More,  245 

Paget  V.  Foley,  163 
Palmer  v.  Earith,  99 
V.  Edwards,  296 


Pannell  v.  Mill,  91,  104 
Paradine  v.  Jane,  191,  195,  211 
Pargeter  v.  Harris,  78,  286,  289 
Parker  v.  Harris,  95 
Parrott  v.  Anderson,  129 
Parry  v.  Duncan,  154,  170 
Parsons  ;;.  Gingell,  147 


TABLE     OF     CASES. 


XXI 


Paul  V.  Nurse,  117,  294 
Pawle  V.  Gunn,  131 
Payne  v.  Burridge,  98 

V.  Haine,  200 

Peacock  v.  Purvis,  148,  150 
Pearce  v.  Davis,  127 
Penley  v.  Watts,  202 
Pennant's  Case,  31,  114 
Pennell  v.  Woodburn,  202 
Penniall  v.  Harborne,  101 
Penry  v.  Brown,  275 
Penton  v.  Eobart,  268,  273,  274 
Peppercorn  v.  Hoffman,  176 
Peters  v.  Fleming,  55 
Phillipps  V.  Shervill,  164,  306 

V.  Smith,  192 

Philpot  V.  Hoare,  290 
Piggot  V.  Brittles,  152,  179 
Pilbrow  V.   Pilbrow's  Atmospheric 

Railway  Co.,  78,  80 
Pincomb  v.  Thomas,  103,  104 
Pincombe  v.  Budge,  207 
Pindar  v.  Ainsley,  140,  206 
Pinero  v.  Judson,  71 
Pinhoru  v.  Souster,  17 
Pitman  v.  Woodbury,  97,  98 
Plumer  v.  Brisco,  184 
Pollock  V.  Stables,  131 

V.  Stacy,  162,  282 

Pollitt  V.  Forrest,  95,  162 
Pomfret  v.  Ricroft,  207 
Poole  V.  Archer,  202 

V.  Longueville,  148,  158 

V.  Warren,  245 

(Mayor  of)  v.  Whitt,  281 

Poole's  Case,  145,  273 
Pordage  v.  Cole,  107 
Porter  v.  Swetnam,  96 
Postman  v.  Harrell,  156 
Potts  V.  Bell,  57 
Poulteney  v.  Holmes,  282 
Powis  V.  Smith,  50 
Pratt  V.  Brett,  205 
Preece  v.  Corrie,  162 
Price  V.  Dyer,  86 
V.  Woodhouse,  172 


Proudlove  v.  Twemlow,  150 
Pugh  V.  Duke  of  Leeds,  84 
Pullen  V.  Palmer,  52 
Pyle  V.  Partridge,  164 
Pyne  v.  Dor,  204 

R. 

Rand  v.  Yaughan,  155,  170 
Randall  v.  Stevens,  20,  220 
Rashleigh  v.   The    South    Eastern 

Railway  Co.,  96,  290 
Rawson  v.  Eicke,  71 
Raymond  v.  Fitch,  298,  299 
Rede  v.  Farr,  112 
Rees  V.  King,  120 
Reeves  v.  M'Gregor,  37 
Reg.  V.  Aylesbury  (Inhabitants  of), 

99 

V.  Chawton,  25,  236 

V.  Leigh,  195 

V.  Raines,  183 

V.  Sewell,  244 

V.  Traill,  244 

V.  Wall  Lynn,  14 

V.  Westbrook,  88,  95 

Regnart  v.  Porter,  73,  161 

Remnant  v.  Bremridge,  301 

Revett  V.  Brown,  14 

Rex  V.  Banbury,  230 

V.  Londonthorpe  (Inhabitants 

of),  267 

V.  Smyth,  242 

V.  St.  Dunstan,  265,  267 

V.  Topping,  275 

Richards  v.  Easto,  199 
Richardson  v.  Gifford,  65,  66,  221 
•  V.  Langridge,  19,  23 


Rich  V.  Woolley  170 
Ricketts  v.  Weaver,  298,  299 
Rider  v.  Edwards,  185 
Ridgway  v.  Lord  Stafford,  152 
Rigby  V.  the  Great  Western  Railway 

Co.,  96 
Risely  v.  Ryle,  23,  73,  95,  162 
Roberts  v.  Barker,  203,  262 
V.  Davey,  113 


XXll 


TABLE     OF     CASES. 


Eobinson  v.  Hoffman,  164 

V.  Learoyd,  245 

V.  Waddington,  178 

Rockingham  (Lord)  v.  Penrice,  127 
Roden  v.  Eyton,  180,  181 
Roe  V.  Ashburner,  70 

V.  Doe,  234 

V.  Galliers,  116 

V.  Harrison,  109,  116,  117 

V.  Hayley,  288 

V.  Hodgson,  46 

V.  Sales,  116 

V.  York  (Archbisliop  of),  225 

Roffey  V.  Henderson,  145,  273 
Rogers  v.  Humphreys,  44 
Rosse  (Eai'l  of)  v.  Wainman,  105 
Rouch  V.  The  Great  Western  Rail- 
way Co.,  116 
Rountree  v.  Jacob,  78,  81, 
Rowden  v.  Malster,  33 
Rubery  v.  Stevens,  301 
Rumball  v.  Munt,  52 
Russell  V.  Gulwell,  81 
Rutland  v.  Wythe,  45 
Ryan  v.  Shilock,  165 
Ryley  v.  Hicks,  64 

S. 

Sacheverell  v  Froggatt,  298 
Salmon  v.  Matthews,  92 

V.  Swann,  13 

Salter  v.  Kidley,  78 
Sampson  v.  Easterby,  290,  291 
Sapsford  v.  Fletcher,  129 
Saunders'  Case,  192 
Scovell  &  Cavel's  Case,  81 
Senior  v.  Armytage,  258 
Selby  V.  Browne  212 
Shaw  V.  Kay,  83 
Sheen  v.  Rickie,  262 
Short  V.  Kalloway,  202 
Sibbald  v.  Roderick,  164 
Simons  v.  Farren,  101 
Simpkin  v.  Ashurst,  26 
Simpson  v.  Clayton,  288 
V.  Hartopp,  142,  147,  179 


Six  Carpenters'  Case,  171, 176, 181 
Skerry  v.  Preston,  129 
Skingley  v.  Surridge,  164 
Slack  V.  Sharpe,  134,  304 
Smith  V.  Adkins,  52 

V.  Bole,  34 

V.  Howell,  202 

V.  Jersey,  120 

V.  Lovell,  212,  224 

V.  Mapleback,  162,  233 

V.  Marrable,  206 

v.  Peat,  201,  295 

V.  Twoart,  140 

Snelliug  v.  Lord  Huntingfield,  64 
Sorsbie  v.  Park,  51 
Spence  v.  Chodwick,  191 
Spencer's  Case,  92, 208, 286, 287, 290 
Spencer  v.  Parry,  131 
Standen  v.  Chrismas,  201,  285 
Stanley  v.  Hayes,  213 
V.  Towgood,  200 


Stanniforth  v.  Fox,  71 
Stansfield  v.  Hellawell,  183, 185 
Stapylton  v.  Clough,  240 
Staveley  v.  Allcock,  52 
Steele  v.  Mart,  83 
Stevenson  v.  Lambard,  213 
V.  Newnham,  168 


Strafford  v.  Edge,  76 
Straton  v.  Rastal,  81 
Stroud,  In  re,  23 
Stroughill  V.  Buck,  80 
Stubbs  V.  Parsons,  133 
Sturgeon  r.  Wingfield,  32 
Style  V.  Hearing,  207 
Styles  V.  Wardle,  83 
Sullivan  v.  Bishop,  245 
Surplice  v.  Farnsworth,  140 
Sutton  V.  Temple,  206,  207 
Swann  v.  Earl  of  Falmouth,  166 
Swatman  v.  Ambler,  97 
Syers  v.  Jonas,  203 
Sym's  Case,  41 

T. 

Tancred  v.  Leyland,  168 


TABLE     OF     CASES. 


XXlll 


Tasker  v.  Bullman,  93 

Tatem  v.  Chaplin,  288,  289 

Taylerson  v.  Peters,  IGl 

Taylor  v.  Henniker,  1G8 

V.  Horde,  27,  32 

V.  Shum,  294,  301 

V.  Young,  305 

V.  Zamira,  129 

Tew  V.  Jones,  18,  140 
<^  Tilney  v.  Norris,  299 

Timinins  v.  Eowlison,  19,  237,  246 

Tinckler  v.  Prentice,  126 

Theed  v.  Starkey,  99 

Thetford  (Mayor  of)  v.  Tyler,  23 

Thomas  v.  Cook,  227,  228,  229,  230, 
231 

Thomas  v.  Fredricks,  61 

V.  Harries,  176 

Thompson  v.  Farden,  184 

V.  Mashiter,  145 

V.  Thompson,  128 

Thompson  v.  Amey,  73 

Thornton  v.  Adams,  156,  170 

Thresher  v.  East  liondon  Water- 
works Company,  275 

Thursby  v.  Plant,  285,  293 

Towne  v.  Campbell,  25,  237 

'  V.  D'Heinrich,  140 

Trappes  v.  Harter,  143,  144,  269, 
275 

Tremeere,  v.  Morison,  301 

Trent,  r.  Hunt  165, 168 

Tress  v.  Savage,  63 

Trevivian  v.  Lawrance,  32 

Turner  v.   Cameron's  Coalbrook 
Steam  Coal  Company,  281 

V.  Ford,  14 

V.  Hardey,  224 

V.  Lamb,  201 

V.  Richardson,  302 

Twynam  v.  Plckard,  296,  297 


U. 

Ughtred's  Case,  107 
Uthwatt  I'.  Elkins,  53 


Valpy  V.  Manley,  132 
Vaughn  v.  Hancock,  76 
V.  Meulove,  199 


Vaux's  (Lord)  Case,  85,  86 
Yernon  v.  Smith,  288,  289 
Yivian  v.  Blomberg,  40 
Yyvyan  v.  Arthur,  96,  288,  289 

W. 

Wakefield  v.  Brown,  52,  288 
Wakeman  v.  Lindsey,  168 
Walker  v.  Hatton,  202 
Wallace  v.  King,  178,  179,  181 
Walls  V.  Atcheson,  230 
Walters.  Eumbal,  166 
Wansbrough  v.  Maton,  271,  275 
Waring  v.  King,  141 
Warman  v.  Faithful,  71 
Warwick  v.  Noakes,  127 
Washborn  v.  Black,  176 
Wathrell  v.  Howells,  275 
Watkinson  v.  Man,  37 
Watson  V.  Main,  154,  170 
V.  Waud,  74,  162,  212 


Webb  V.  Plummer,  258,  259 
V.  Russell,  95,  289 


Weeton  v.  Woodcock,  273 
Weigall  V.  Waters,  202 
Walch,  V.  Myers,  170,  302 
West  V.  Blakeway,  275 

V.  Nibbs,  176 

Westwood  V.  Cowne,  180 
Wharton  v.  Mackenzie,  55 
Wheeler  v.  Branscombe,  129 
V.  Montefiore,  14 


Whilster  v.  Paslow,  103 
Whiteacre  v.  Symonds,  241 
Whitfield  V.  Bewit,  192 
Whitworth  v.  Smith,  181 
Wickham  v.  Hawker,  91, 104 
V.  Lee,  245 


Wigglesworth  u.  Dallison,  203,  251 

257,  258 
Wilder  v.  Speer,  172 
Wildman  v.  Wildman,  41 
Wiles  V.  Woodward,  78,  79 


XXIV 


TABLE     OF     CASES. 


Wilkins  v.  Wood,  261 
Wilkinson  v.  Candlish,  127 

V.  Gaston,  85 

V.  Hall,  50,  68 

Willett  V.  Earle,  128 

Williams  v.  Burrell,  207,  287,  288, 

293,  299 

V.  Holmes,  147 

V.  Moor,  49, 

V.  Eoberts,  155 

V.  Sawyer,  223,  224 

V.  Stiven,  161 

Willison  V.  Patteson,  57 

Wilmot  V.  Eose,  152 

Wilson  V.  Nightingale,  167 

Wilson  V.  Sewell,  226 

Wilton  V.  Dunn,  131 

Wiltshear  v.  Cottrell,  ]  43,  261,  262, 

271,  275 
Windsor's  (Dean  and  Chapter  of) 

Case,  288 
Windsor  (Dean  of)  v.  Gover,  92 
Winn  V.  Ingilby,  265 
Winterbottom  v,  Ingham,  18,  139 
Wiuterbourne  v.  Morgan,  181 


Wollaston   v.   Hakewill,   296,   299 

301 
Wolveridge  v.  Steward,  295 
Woodbridge  Union  v.  Colueis,  24 
Wood  V.  The  Copper  Miners  Co., 

96 

V.  Hewett,  144,  263 

V.  Nunn,  166 

V.  Day,  201 

Woods  V.  Durant,  176 
Wootou  V.  Steffenoni,  56,  290 
Wright  V.  Burroughs,  242,  296,  297 

V.  Dewes,  150 

V.  Eamscot,  148 

V.  Smith,  245 


Wyburd  v.  Tuck,  83 
Wynne  v.  Wynne,  107 

Y. 

Yates  V.  Cole,  296 

V.  Eastwood,  178 

Young  V.  Eaincock,  78 

Z. 

Zouch  V.  Parsons,  49 
V.  Willingale,  240 


TABLE    OF    AMERICAN    CASES. 


The  pages  referred  to  are  those  within  [        ]. 


A. 

Adams  v.  Gibney,  207 

V.  La  Comb,  154,  168, 170 

Alexander  v.  Dorsey,  198 
Alleu  V.  Culver,  285,  291 

V.  Jaquish,  235 

-  V.  Wooley,  285 


Alston  V.  Scales,  124 
Anderson  v.  Darby,  46 
Andrews  v.  Dixon,  148 

V.  Walcott,  288 

Amit  V.  Garnell,  148 
Armstrong  v.  Wheeler,  295 
Astry  V.  Ballard,  192 
Atkins  V.  Cliilson,  109 
Ay  res  v.  Draper,  239 
V.  Novinger,  245 

B. 

Bacon  v.  Brown,  221 
Bailey  v.  Wright,  129 

V.  Delaplaine,  231 

Bain  v.  Clark,  221,  250 
Baldwin  v.  Walker,  281 
Bancroft  v.  Wardell,  140 
Bank  v.  Chamberlain,  49 
Bank  of  Pennsylvania  v.  Wise,  134 
Bank  of  Utica  v.  Mersereaux,  234 
Bantleon  v.  Smith,  129,  306 
Barnard  v.  Poor,  198 
Baskin  v.  Seechrist,  234 
Baxter  v.  Eyers,  207 

V.  Taylor,  124 

Beach  v.  Grain,  198 
Beddoes'  Ex'rs  v.  Wadsworth,  288 
Bedford  v.  McElherron,  235,  245 
Beecher  v.  Parmelee,  242 
Beeston  v.  Wright,  148 
Beekmau  v.  Lansing,  148 


Beelden  v.  Saymere,  79 
Beers  v.  St.  John,  273 
Bell  V.  Twentyman,  124 
Bellows  V.  Sacket,  124 
Bell  V.  Porter,  161 
Beuoist  V.  SoUee,  161 
Bickford  v.  Page,  288 
Bigelow  V.  Judson,  165 

V.  Wilson,  84 

Biggs  V  Brown,  258 
Binney  v.  Chapman,  239 
Binns  v.  Hudson,  148 
Blacker  v.  Albertson,  244 
Blake  v.  Delisseline,  306 
Blair  v.  Hardin,  207 
Blanchard  v.  Hilliard,  84 
Blantin  v.  Whitaker,  234 
Blashford  v.  Duncan,  245 
Blume  V.  McClaskin,  140 
Boggs  V.  Black,  245 
Bolles  V.  Beach,  79 
Bolton  V.  Johns,  79 
Bool  V.  Mix,  49 
Bosler  v.  Kuhu,  303 
Bourne  v.  Taylor,  192 
Bowdre  v.  Hampton,  285 
Bowen  v.  Bell,  79 
Boyer  v.  Smith,  234 
Bowzer  v.  Scott,  91,  148,  161 
Boyd  V.  McCombs,  125 
Brant  v.  Livermore,  234 
Brewer  v.  Knapp,  221 
Bromley  v.  Hopewell,  148 
Brown  v.  Crump,  262 

V.  Sims,  147. 

V.  Staples,  288 

V.  Vanhorn,  235 


Bukup  V.  Valentine,  161 
Burbank  v  Gould,  79 


XXVI 


TABLE    OF    AMERICAN    CASES. 


Burd  V.  Commonwealth,  242 
Burden  v.  Thayer,  281 
Burhiius  V.  Van  Zandt,  218 
Burr  r.  Lelais,  84 
Burke  v.  Hale,  234 
Butts  V.  Edwards,  179 
Byrne  v.  Beeson,  234 
V.  Van  Heeson,  46 

C. 

Cadwalader  v.  Tindall,  147 
Caldcleugh  v.  Hollingsworth,  179 
Calvert  v.  Joliffe,  148 
Cannon  v.  Hatchie,  124. 
Carrier  v.  Earle,  19 
Carskadden  v.  McGhee,  47 
Carter  v.  Denman,  288 

V.  Hammitt,  295 

Caswell  V.  Dietrich,  91 
Case  V.  Davis,  148 
Chambers  v.  Pleak,  234 
Chapman  v.  Holmes,  288 
Chase  v.  Hazleton,  192 
Chipman  v.  Martin,  129 
City  Council  v.  Moorehead,  195 
Clapp  V.  Paine,  235 

V.  Tirrell,  79 

Clark  V.  Everley,  234,  245 

V.  Jones,  114 

V.  Gibson,  64 

V.  Foot,  198 

v.  Fraley,  151 

V.  Patterson,  245 

V.  Redman,  288 

V.  Yeat,  245 

V.  Swift,  288 

Clason  V.  Bailey,  64 
Clavering  v.  Clavering,  192 
Cleves  V.  "Willoughby,  206 
Clifford  V.  Beems,  161,  170 
Cline  V.  Black,  198 
Cocking  V.  Ward,  64 
Codman  v.  Jenkins,  140 
Cokerv.  Pearsall,  231 
Colt  v.  Seldon,  64 
Colyer  v.  Speer,  148 
Commonwealth  v,  Coutner,  149 


Commonwealth  v.  Toram,  242 

Coon  V.  Brickett,  109 

Cook  V.  Champlain  Trans.  Co.  198 

V.  Neilson,  235 

V.  Loxley,  234 

Conway  v.  Starkweather,  221,  235 
Cook  V.  Champlain  Trans.  Co.  267 
Cooper  V.  Smith,  234 
Coonell  V.  Lamb,  129 
Cornell  v.  Moulton,  84 
V.  Yanartsdalen,  195 


Craig  V.  Dale,  258,  262 
Crocker  u.  Mann,  161 
Crosswell  v.  Crane,  64 
Cummings  v.  Powell,  49 
Cunningham  v.  Gardner,  245 
Curtis  V.  Hubbard,  165 
Cuthbert  v.  Kuhn,  137 

D. 

Dalgleish  v.  Grandy,  161 
Damarest  v.  Willard,  288 
Daniels  v.  Pond,  262 
Davis  V.  Brocklebarr,  249,  251 

V.  GilUam,  192 

V.  Jewett,  124 

V.  Thompson,  72,  249,  251 


De  Chaumont  v.  Forsyth,  288 

Debrow  v.  Colfax,  249 

De  Lancey  v.  Ga  Nun,  109,  234 

Demi  v.  Bossier,  258 

De  Mott  V.  Hagemann,  91 

Den  V.  Adams,  235 

V.  Blair,  235 

V.  Drake,  235 

Denham  v.  Harris,  129,  148 
Dennison  v.  Lee,  306 
De  Vatch  v.  Newsam,  234 
Desilver's  Estate,  6 
Dewey  v.  Dupuy,  293 
De  Young  v.  Buchanan,  221 
Dexter  v.  Manly,  207 
Diller  v.  Roberts,  221 
Diffendoffer  v.  Jones,  258 
Dinehart  v.  Wilson,  91 
Dinsdale  v.  Isles,  16 
Dixon  1-.  Smith,  148 


TABLE  OF  AMERICAN  CASES. 


xxvu 


Dobbins  v.  Brown,  211,  213 
Dockham  v.  Parker,  91 
Dod  V.  Sasley,  148 
Doe  V.  Cock,  244 

V.  Flynn,  234 

V.  Lucas,  240 

V.  Marsh,  240 

V.  Murless,  240 

V.  Oliver,  234 

V.  Seaton,  234 

V.  Stamion,  234 

V.  Walters,  239 

Doremus  v.  Howard,  91 
Dorrell  v.  Johnson,  235 
Dorrill  v.  Stevens,  211 
Dougherty's  Estate,  306 
Drake  v.  Newton,  65 
Dubois  V.  Kelly,  271 
Dubree  v.  Lees,  19 
Duke  V.  Harper,  234 
Dunbar  v.  Jumper,  287 
Durando  v.  Wyman,  295 

E. 

Ege  V.  Ege,  148 
Egermont  v.  Putman,  124 
Ellis  V.  Paige,  18.  21 
Emmons  v.  Littlefield,  79 
Ewing  V.  Bailey,  84 
Evans  v.  Englehart,  255 

V.  Hastings,  245 

Ex  parte,  Pillow,  244 

F. 

Fahnestock  v.  Faustenauer,  245 
Fairbanks  v.  Williamson,  285 
Farr  v.  Sumner,  49 
Farley  v.  Thompson,  281 
Farnell  v.  Rogers,  84 
Ferguson  v.  Bell,  49 
Fife  V.  Irving,  148 
Fisher  v.  Milliken,  207, 293 
Foote  V.  Burnett,  288 
Foster  v.  Cookson,  148 
Fortier  v.  Balance,  234 
Fowler  v.  Poling,  288 
Fox  V.  Hefifner,  64 


Freeman  v.  Heath,  234 
Franciscus  v.  Eeigart,  165 
Freytag  v.  Anderson,  244 
Frisby  v.  Thayer,  154,  168 
Fry  V.  Jones,  91,  161 
Frouty  v.  Wood,  221 

G. 
Gaffield  v.  Hapgood,  273 
Galbraith  v.  Black,  245 
Galloway  v.  Ogle,  234 
Garrison  v.  Sanford,  288 
Galis  V.  Caldwell,  207 
Geisenberger  v.  Corp.,  244 
George  v.  Bartoner,  64,  74 
Gerfield  v.  AYilliams,  288 
Ghegau  v.  Young,  293 
Gilhooley  v.  Washington,  140 
Gillett  V.  Stanley,  49 
Given  v.  Bland,  142  / 
Gleim  v.  Else,  234 
Goddard,  v.  Railroad  Co.,  235 
V.  Gould,  267 


Goodtitle  v.  Woodward,  239 
Gordon  v.  Correy,  129 
Goswiler's  Estate,  84 
Goverueur  v.  Edward,  148 
Grace  v.  Shively,  154 
Graham  v.  Houston,  91 
V.  Moore,  234 


Grant  v.  Gill,  140 

Graves  v.  Da  Castro,  148 

Greenley  v.  Wilcocks,  288 

Gregory  v.  Crabb,  234 

Greider's  Appeal,  64,  148,  221,  225 

Greeno  v.  Munson,  218 

Green  v.  Liter,  218 

V.  Keen,  205 

Grubb  V.  Fox,  245 
Guild  V.  Rogers,  161 

H. 
Hacker  v.  Storer,  288 
Hale  V.  Oldroyd,  124 
Hall  V.  Stevens,  218 
Hamilton  v.  Marsden,  234 

V.  McGuire,  79 

V.  Reedy,  148 


XXVlll 


TABLE    OF    AMERICAN    CASES. 


Hamilton  v.  "Wilson,  288 
Hargrave  t\  King,  116 
Hancliet  v.  Whitney,  235 
Hare  v.  Celey,  91 
Harris  v.  Carson,  250,  258 
Harris  v.  Coubborn,  291 

V.  Gosliu,  288 

Harrison  v.  Barry,  148 

V.  Sampson,  299 

Hasbrook  v.  Paddock,  109 
Hastings  v.  Crunkleton,  192 
Hawk  V.  Senseman,  218 
Haywood  v.  Miller,  91 
Hawkins,  v.  Pope,  221 
Hazard  v.  Raymond,  148 
Hazeu  v.  Culbertson,  245 
Heath  v.  Williams,  234 

V.  Whidden,  285,  288 

Hemphill  v.  Flynn,  235 

Herbert  v.  Henrick,  218 

Henly  v.  Branch  Bank,  234 

Henry  v.  Jones,  84 

Henchett  v.  Kimpson,  148 

Henwood  v.  Cheeseman,  140 

Hennis  v.  Streeper,  148 

Hesseltine  v.  Steever,  226 

Hill  V.  Manchester  AVater  Works, 

229 
Hillary  v.  Gay,  244 
Hinchman  v.  lies,  16 
Hobbs  V.  Geiss,  154,  170 
Hockenburg  v.  Snyder,  234 
Hohley  v.  German  Rep.  Soc,  245 
Hollingshead  v.  Allen,  192 
Holmes  v.  Tremper,  267,  271,  273 
Hoskius  V.  Knight,  148 
Howell  V.  Ashmore,  234 
Hower  v.  Krider,  245 
Hughes  V.  Young,  99 
Hunter  v.  Osterhouldt,  114 
Hurst  V.  Rodney,  288 
Huston  V.  Springer,  198 
Hutchinson  v.  Potter,  235,  245 
Hyatt  V.  Wood,  242 

I. 

Iddings  V.  Nagle,  258,  262 


Ingersoll  v.  Sergeant,  84,  134,  296 
Irving  V.  Covode,  192 
Irving  V.  Bull,  64,  74 
Isaac  V.  Clark,  234 
Ives  V.  Ives,  242 

J. 

Jacks  V.  Smith,  161 
Jackson  v.  Allen,  114 

■  V.  Brownell,  91 

V.  Brownson,  114,  192 


—  V.  Carpenter,  49 

—  V.  Harder,  234 

—  V.  Hawkes,  244 

—  V.  Hinman,  234 

—  v.  HoUoway,  41 

—  V.  Kip,  115 

—  V.  Peskid,  124 

—  V.  Patterson,  221 

—  V.  Rowland,  234 

—  V.  Schietz,  114 

—  V.  Shelden,  109 

—  I'.  Silvernail,  114 

—  V.  Stiles,  218,  234 

—  V.  Stewart,  234 

—  V.  Whitford  234 

—  V.  Vincent,  234 


Jacobs  V.  Graham,  84 
Jenkins  v.  Eldridge,  72 
Johnson  v.  Hannahan,  242 
Jones  V.  Gundrim,  91,  161,  165,  170 

V.  Porter,  218 

V.  Reed,  109 

V.  Tatham,  234 

i;.  Whitehead,  192 

K. 

Keath  v.  Widden,  288 

Kelly  V.  Walster,  64 

Kendall  v.  Lawrence,  49 

Kenrick  v.  Smith,  114 

Kennebec  Proprietor  v.  Spanger,  218 

V.  Laberee,  218 


Kenny  v.  Watts,  207 

Kerr  v.  Merchants'  Ex.  Co.,  198 

V.  Sharp,  179,  180 

Kesler  v.  McConachy,  211 


TABLE    OF    AilERICAN    CASES. 


XXIX 


Kidd  V.  Deuuison,  192 
Kimpton  v.  Walker,  97,  287 
King  V.  Kerr,  288 
Kingv.  Murray,  234 
Kluge  V.  Lachenour,  234 
Knight  V.  Smith,  234 
Kunckle  v.  Wynich,  97,  293 

L. 

Lamitti  v.  Anderson,  287 
Lane  v.  Crockett,  148 
Lansing  v.  Pendergast,  303 
Lansing  v.  Rattoone,  306 
Lassell  v.  Reed,  262 
Lawrence  v.  Kemp,  273 
Lawyer  v.  Smith,  198 
Lee  V.  Cook,  299 
Legg  V.  Benion,  239 
Leland  v.  Gassitt,  271 
Lemar  v.  Miles,  267 
Lenox  v.  McCall,  245 
Lesley  v.  Randolph,  19,  235,  245 
Lester  v.  Bartlett,  64 
Lewis  V.  Campbell,  285 

V.  Cook,  288 

Lewis  V.  Jones,  192,  262 
Line  v.  Stephenson,  207 
Lisnow  V.  Ritchie,  124 
Livingston  o.  Potts,  226 

V.  Tanner,  26 

Lockwood  V.  Lockwood,  221 

V.  Walker,  234 

Logan  V.  Herron,  235,  245 

V.  Moulder,  288 

Loomis  V.  Wilbur,  192 
Long  V.  Fitzsimmons,  195,  198 
Lorent  v.  So.  Ca.  Ins.  Co.  84 
Lot  V.  Thomas,  288 
Loveriug  v.  Levering,  207 
Lougee  v.  Colton,  161 
Lone  ;;.  Edmonstone,  19 
Lowry  v.  Mehaffy,  64 
Ludlow  V.  New  York,  114 
Luusford  V.  Turner,  234 
Lyde  v.  Russell,  273 
Lyle  V.  Richards,  6 
V.  Williams,  84 


M, 

McCanna  v.  Johnson,  235, 
McCormick  v.  Connell,  109,  125 
McCrady  v.  Brisbane,  288,  299 
McCrea  v.  Purmort,  79 
McCuUough  V.  Irving's  Exc,  192 
McFarland  v.  Watson,  140 
McFarson's  Appeal,  64 
McGee  v.  Fessler,  245 
McGinn  v.  Shaeffer,  49 
McGinnis  v.  Porter,  218 
McGruder  v.  Peter,  46 
McGunnagle  v.  Thornton,  140 
McKinney  v.  Reader,  158,  179,  225, 

244 
McKenzie  v.  Lexington,  231 
McKeon  v.  King,  245 
Mclntyre  v.  Patton,  234 
Maigs  V.  Anderson,  84       ' 
Magau  V.  Lambert,  195,  199,  225 
Marker  v.  Marker,  192 
Markland  v.  Crump,  287 
Marseilles  v.  Kerr,  140 
Martin's  Appeal,  148 
Martin  v.  Baker,  285,  287,  288 
Mason  v.  Delaplaine,  134 
Maule  V.  Ashmead,  64,  207 
V.  Wilson,  198 


May  V.  Calder,  46 
Mayberry  v.  Johnson,  64 
Menough's  Appeal,  125 
Middleraore  v.  Goodale,  285 
Middlebrook  v.  Corwiu,  262 
Miller  v.  Baker,  269, 271 
Miller  v.  McBrien,  534 
Miller  v.  Pellettier,  64 
V.  Bonsadon,  234 


Mitchell  V.  Warner,  285,  287,  288 
Mills  V.  Auriol,  95 
Mhoon  V.  Duggle,  16,  18 
Moffat  V.  Smith,  141 
Morehead  v.  Watkins,  235 
Moorehouse  v.  Cotheal,  192 
Montague  v.  Smith,  301 
Montgomery  v.  Craig,  284 
Morgan  v.  Bitzeuberger,  79 


XXX 


TABLE  OF  AMERICAN  CASES. 


Morse  v.  Shattuck,  79 
Moskier  v.  Keeling,  68,  234,  235 
Monsley  v.  Ludlum,  262 
Mumford  v.  Brown,  195 
Munson  v.  Wray,  68 

N. 
Nave  V.  Berry,  202 
Needham  v.  Allison,  262 
Neel  V.  Neel,  192 
Nesbit  V.  Nesbit,  287 
Neville  v.  Dunbar,  240 
Newell  V.  Gibbs,  245 
Newman  v.  Mackin,  234 
Newman  v.  Rutter,  109,  234 
Nickle  V.  McFarland,  218 
Nichols  V.  Williams,  19 
Noke's  Case,  207 
Norman  v.  Wells,  287,  288,  291 
North  V.  Barnum,  218 
Norton  v.  Sanders,  234 

O. 

O'Conner  v.  Townes,  84 
O'Neal  V.  Lodge,  79 
Overdeer  v.  Lewis,  19,  242 
Overseers  v.  Overseers,  90 
Owen  V.  Hyde,  192 
Owings  V.  Emory,  192 


Padelford  v.  Padelford,  192 
Pancoast's  Appeal,  306 
Parker  v.  Keller,  148 
Parrill  v.  McKinley,  64 
Peirce  v.  Scott,  148 
Pemberton  v.  King,  267,  271,  273 
Pendleton  u.  Dyott,211 
Penhallou  v.  Dwight,  255 
Peters  v.  Grubb,  213 

V.  Newkirk,  129 

Philips  V.  Ohesson,  114 

V.  Roberts,  234 

Phillips  V.  Green,  49 

V.  Menges.  221 

V.  Rothwell,  234 

Pierce  v.  Duval,  288 


Pierson  v.  Turner,  235 
Pinckney  v.  Hagadorn,  64 
Pleasants  v.  Benson,  240 
Plumleigha;.  Cook,  285 
Pollard  V.  Schaffer,  195,  202,  285, 

288 
Pond  V.  Curtis,  47 
Poor  V.  Peebles,  154 
Pope  V.  Hawkins,  234 
Pott  V.  Lesher,  140 
Preble  v.  Hay,  235 
Preston  v.  Briggs,  273 
Price  V.  Limehouse,  129 
Prentice  v.  Kingley,  303 
Price  V.  Pickett,  253  \ 

Printems  v.  Helfrid,  129 
Proprietors  v.  McFarland,  19 
Pritchard  v.  Brown,  79 
Pugh  V.  Good,  64 
Pyle  V.  Moulding,  84 
Putnam  v.  Wise,  91 

Q. 

Quain's  Appeal,  207,  299 
Quinn  v.  Wallace,  179 
Quackenboss  v.  Clarke,  295 

R. 

Rand  v.  Rand,  84 
Randolph  v.  Carlton,  234 
V.  Kinney,  285 


Rankin  v.  Tenbrook,  234 
Ranku.  Rank,  258 
Rayer  v.  Ake,  95 
Raymond  v.  White,  267 
Redwine  v.  Brown,  288 
Reed  v.  Thoyts,  148 

V.  Shipley,  234 

V.  Ward,  211 

Reeves  v.  McKenzie,  161 
Reynolds  v.  Shuler,  146 
Richardson  v.  Dorr,  288 
Rhinehart  v.  Olwine,  91,  161 
Richie  v.  McCauley,  148 
Riddle  v.  Welden,  147 
Ridgway  v.  Crandall,  49 
Right  V.  Cuthell,  235 


TABLE  OF  AMERICAN  CASES. 


XXXI 


Ripka  V.  Sergeant,  124 
Eisingy.  Staunard,  18 
Eoberts  v.  Teimell,  161 
Roeu  V.  Wiggs,  240 
Rogers  v.  Browa,  161 
Ross  V.  Gill,  46 
Rowan  v.  Little,  226 
Ryers  v.  Farwell,  234 

S. 
Sands  v.  Smith,  306 
Saltonstall  v.  White,  244 
Sarles  v.  Sarles,  262 
Schenck  v.  Yannut  148 
Schilenger  i'.  McCann,  79 
Scott  V.  Fuller,  161,  245 
Seitzinger  v.  Steiuberger,  148 
Sibley  v.  Colt,  306 
Sinnett  v.  Bucher,  13 
Shaffer  v.  Sutton,  14,  245 
Shelley  v.  Wright,  78 
Shelton  v.  C adman,  285 
Shephard  v.  Spalding,  221,  273 
Sherburne  v.  Jones,  249, 251 
Shepperd  v.  Little,  78,  79 
Singleton  v.  Singleton,  255 
Smith  V.  Colson,  161 

V.  Eldridge,  140 

V.  Niver,  226,  231 

V.  Russell,  148 

Smith  V.  Frinder,  41 
Sraithwick  i\  Ellison,  258 
Smyth  V.  Tankersley,  91 
Snyder  v.  Kinkleman  129 
Spangler's  Appeal,  306 
Spear  v.  Fuller,  110 
Sprague  v.  Baker,  288 
Squires  v.  Haff,  19 
St  John's  College  v.  Murcott,  148 
State  V.  Armfield,  165 

V.  Elliott,  273 

V.  Mc  Clay,  258 

• V.  Thackaw,  265 

Steinmitz  v.  Ainslie,  303 
Steel  V.  Thompson,  161,  245 
Stewart  v.  Doughty,  91,  255 
V.  Roderick,  234 


Stinson  v.  Summer,  288 
Stoever  v.  Whitman,  109 
Stockwell  V.  Hunter,  198 

V.  Marks,  273 

Stone  V.  Matthews  147 
V.  Proctor,  262 


Stoughton  V.  Leigh,  192 
Stratton  v.  Lord,  244 
Streaper  v.  Fisher,  288 
Stroup  V.  McClure,  245 
Stultz  V.  Dickey,  258 
Sullivan  v.  Enders,  19,  23 
Sumner  v.  Tileston,  124 
V.  Williams,  207 


Suydam  v.  Jones,  288 
Swan  V.  Wilson,  234 
Swann  v.  Searles,  207 


Tallman  v.  Coffin,  287,  291 
Tate  V.  Crowson,  109 
Tattle  V.  Bebee,  91 
Taylor  v.  Townsend,  124,  267 
V.  Owen,  287 


Templeman  v.  Biddle,  258 
Terhoven  v.  Kerns,  306 
Thayer  v.  Society  of  United  Bre- 
thren, 234 
Thomas  v.  Connell,  288 
Thomas  v.  Wright,  19 
Thomas  v.  Von  Kapff,  288 
Thompson  v.  Rose,  291 
Thurgood  v.  Richardson,  148 
Thursley  v.  Plant,  285 
Tiley  v.  Moyers,  192 
Torrence  v.  Commonwealth,  242 
Townsend  v.  Morris,  288 
Tilghman  v.  Little,  234 
Tucker  v.  Newman,  124 
Tufts  V.  Adams,  288 
Turberville  v.  Stamp,  198 
Turley  v.  Rogers,  234 
Tyler  v.  Pen  nock,  267 

U. 
Union  Canal  Co.,  v.  Keyser,  245 
V.  Young,  79 


xxxu 


TABLE    OF    AMERICAN    CASES. 


Valentine  v.  Jackson,  161 

Vanderkarr  v.  Vanderkarr,  207 

Van  Horn  v.  Grain,  288 

Van  Dosen  v.  Everitt,  258 

Van  Ness  v.  Packard,  267 

Van  Pool  V.  The  Commonwealth, 

242 
Van  Eensselear  v.  Gallup,  296 

V.  Jones,  295 

V.  Penniman,  226 

V.  Plainer,  207,  299 

.  V.  Quackenboss,  148 


Vaughau  v.  Blanchard,  211 
Vechte  v.  Brownell,  306 
Vielie  v.  Osgood,  64 
Viner  v.  Vaughan,  192 
Voorhis  v.  Freem,  267 

W, 

Wadsworthville  School  v.  Meetze, 

218 
Walker  v.  Ellis,  235 

V.  Physick,  97 

Walter  v.  Waterhouse,  234 
Wain  V.  O'Conner,  262  . 
Walton  V.  File,  242 
Ward  V.  Wandell,  244 
Warner  v.  Hitchine,  198 
Watson  V.  O'Hern,  68 
Washburn  v.  Sproat,  267 
Weber  u.  Sherman,  161 
Weeks  v.  Hull,  84 
Weidner  v.  Foster,  285 
Wells  V.  Hornish,  161 

. V.  Mason,  234 

West  V.  Gartledge,  140 
V.  Sink,  148 


Wharton  v.  Fitzgerald,  140 
Wheaton  v.  East,  49 
Wheelock  v.  Thayer,  288 
Whitbeck  v.  AVhitbeck,  79 
White  V.  Arndt,  267 

V.  Whitney,  285 


Whitechurch  v.  Holworthy,  192 
Whitraarsh  v.  Cutting,  250 
Whiting  V.  Brastow,  267 
Whitney  v.  Meyers,  231 
Widger  v.  Brownin,  240 
Wiggins  V.  Peters,  84 
Wilber  v,  Paine,  64 
Wilcoxen  v,  Bowles,  154 
Wilkinson  v.  Scott,  79 
Williams  v.  Beeman,  288 

V.  Lewsey,  148 

V.  McAliley,  234 

V.  Spencer,  165 

. ■ V.  Witherbee,  288 

V.  Woodward,  295 


Wilson  V  Clark,  64 
V.  Forbes,  288 


Wilt  V.  Frankhn,  79 
Windsor  v.  China,  84 
Winter  v.  Cornish,  198 
Witby  V.  Mumford,  288 
Wolf  V.  Hauver,  79 
Woglan  V.  Cowperthwaite,  174 
Woodbridge  v.  Brigham,  84 
Wood  V.  Wood,  244 
Worcester  v.  Eaton,  49 
Worley  v.  Worley,  148 
Wyman  v.  Ballard,  288 
V.  Farrar,  124 


Youngblood  v.  Lowry,  147 


THE 


LA¥  OF  LA}(DLORD  MD  TEMNT. 


LECTURE   I. 


General  Yiew  op  Tenures  ...  1 
Meaning  of  Terms,    "Land- 
lord and  Tenant," 3 

Freehold  Tenancies 5 

Tenancy  in  Fee  Simple 5 

Statute  of  Quia  Emptores.  ,  5 

Tenancy  in  Fee  Tail 6 

Tenancy  for  Life 6 

Tenancies  less  than  Freehold  8 

Origin  of 8 

Origin  of  Action  of  Ejectment  9 

Tenancy  for  Years 12 

Interesse  Termini 13 


Must  be  for  a  Time  certain,  .14 

Tenancy  at  Will 15 

Determination  of. 16 

By  Implication 18 

Tenancy  from  Year  to  Year.  20 

Origin  of. 20 

Emblements 20 

Notice  to  quit 21 

Presumption  of  Tenancy  from 

Payment  of  Rent 21 

Assignment  of 24 

Tenancy  BY  Sufferance 25 

Never  arises  by  Contract. . .   26 


The  object  of  this  and  of  tlie  succeeding  Lectures 
will  be  to  state,  as  shortly  and  intelligibly  as  may  be,  the 
principal  doctrines  of  the  law  of  Landlord  and  Tenant. 
There  are  few  words  so  constantly  in  lawyers'  mouths 
as  the  words  Landlord  and  Tenant ;  and  yet,  when  we 
come  to  inquire  what  precise  relation  are  they  intended 
to  express — there  are  few  questions  which  one  feels 
greater  practical  difficulty  in  answering;  for,  on* 
the  one  hand,  there  is  no  doubt  whatever  that,  •-  ^ 
in  point  of  strict  law,  wherever  we  find  a  subject  in 
possession  of  land,  tliere  the  relation  of  tenancy  is  in 
existence  between  him  and  somebody  or  other,  since, 

3 


34  LANDLORD    AND    TENANT. 

according  to  the  immutable  rule  of  English  law,  no 
subject  can  have  what  is  called  allodial  property,  that  is, 
land  held  of  nobody.  Some  one  or  other  must  be  his 
superior  lord,  and,  if  no  other  person,  then  the  sove- 
reign, of  whom  all  the  landed  property  in  the  realm  in 
the  possession  of  subjects  is  thus  ultimately  held.^  I 
say  ultimatel?/,  because,  put  the  case  that  there  are  fifty 
intermediate  landlords,  the  last  of  them  must  himself 
hold  of  some  person,  and  that  person  must  be  the 
sovereign,  inasmuch  as  there  is  no  one  else  capable 
of  holding  independently  of  any  superior.  There  is 
great  doubt  among  our  legal  antiquarians  as  to  the 
precise  period  at  which  this  system  of  tenures  was 
adopted  in  England;  some  contending  that  it  owes 
its  origin  to  the  Norman  Conquest,  others,  that  it 
existed  in  the  Saxon  times,  and  received  certain  modi- 
fications after  the  Conquest.^  But,  be  this  as  it  may, 
it  has  now  been  for  upwards  of  eight  hundred  years, 
at  least,  a  settled  and  unchangeable  principle  of  Eng- 
lish law,  that  no  person  except  the  sovereign  can  hold 
landed  property  without  a  *superior  lord,  and 
^  ^  consequently,  in  the  contemplation  of  strict  law, 
the  relation  of  Landlord  and  Tenant  is  as  extensive 
as  the  OAvnership  of  landed  property  by  subjects.^ 

1  need  not,  however,  tell  you  who  must  be  all  fami- 
liar with  the  use  of  those  terms,  that  when  we  speak 
of  Landlord  and  Tenant,  even  among  lawy^ers,  we  use 
those  words  in  a  much  narrower  sense  than  that  which 
I  have  just  described.  For  instance,  when  we  use  the 
words  Landlord  and  Tenant,  we  do  not  mean  to  express 

^  Co.  Litt.  1  a,  b,  65  a. 

2  See  Co.  Litt.  (by  Hargrave  and  Butler,)  64  a,  note  1 ;  2  Black. 
Com.  48 ;  and  Reeve's  Hist,  of  Eng.  Law,  vol.  i.  p.  8,  where  the 
authorities  on  both  sides  of  this  question  are  mentioned, 

3  Co.  Litt.  65  a;  2  Black.  Com.  51. 


GENERAL    VIEW    OF    TENURES.  35 

the  species  of  relation  which  subsists  between  the 
sovereign  and  a  subject;  for  instance,  the  Duke  of 
Wellington,  who  holds  his  estates  of  her  Majesty  by 
the  service  of  presenting  yearly  a  hanner  in  lieu  of  all 
other  rents  and  services;*  nor  do  we,  I  think,  ever 
intend  to  express  the  sort  of  relation  that  exists 
between  the  reversioner  and  the  particular  tenants 
under  a  settlement,  where  no  rent  is  reserved,  or  any 
service  rendered,  although  a  tenancy  doubtless  exists 
between  them ;  for  instance,  if  I  convey  lands  to  A.  in 
tail,  keeping  the  reversion  myself,  there  is  no  doubt- 
*that  A.  becomes  my  tenant,  thous^h  I  reserve  ^ 
not  a  sixpence  of  rent,  nor  ask  for  any  covenant  ^  -' 
on  his  part  to  perform  any  of  the  ordinary  duties  of  a 
tenant,  and  though  he  might  destroy  my  interest  the 
next  day  if  so  minded.  But  though,  as  I  have  said, 
he  is  my  tenant  in  strict  law,  this  is  not  the  sort  of 
tenancy  we  mean  when  we  use  the.  words  Landlord 
and  Tenant.  It  is  very  difficult  to  express  in  terms 
the  precise  idea  which  we  attribute  to  those  words; 
but  I  think  that  I  am  not  far  wrong  in  saying  that, 
when  we  speak  of  Landlord  and  Tenant,  we  have  the 
notion  in  our  minds  of  a  tenancy  limited  in  point 
of  duration  within  some  bounds  not  so  extensive  as 
to  render  the  landlord's  interest  'practically  worthless, 
and  accompanied  by  some  remunerating  incidents  to 

^This  is  one  of  the  few  remaining  instances  of  a  holding  hj  petit 
Serjeant)/  (per  pervum  servitium,)  which  was  one  of  the  old  tenures 
in  capite.  In  this  tenure  a  subject  held  land  immediately  from  the 
crown,  rendering  a  bow,  a  sword  or  the  like.  Litt.  ss.  159,  160, 
161.  Grand  serjeanty  was  of  a  similar  character,  but  the  services 
rendered  were  persoiial  to  the  king ;  as,  for  instance,  the  bearing  of 
his  sword  or  his  lance.  Litt,  ss.  153  to  158.  By  the  12  Car.  2,  c, 
24,  these  tenures  were  converted,  in  efiFect,  into  ordinary  socage 
tenures. 


36  LANDLORD    AND    TENANT. 

the  reversion,  such  as  a  rent,  or  at  all  events  a  fine 
in  lieu  of  one,  and  also  by  certain  obligations,  such 
as  covenants,  or,  where  the  tenancy  is  evidenced  by 
some  instrument  not  under  seal,  agreements,  for  the 
performance  of  the  duties  usually  required  from  per- 
sons taking  the  description  of  property  demised ;  and 
as  these  are  the  sort  of  tenancies  which  give  rise  to 
the  great  mass  of  practical  questions  involved  in  the 
law  of  Landlord  and  Tenant,  it  is  to  these  that  I 
intend  almost  exclusively  to  direct  my  remarks.  Still 
(as  it  is  always  useful  and  satisfactor)^  to  take  a  ^dew 
of  the  entire  subject,  although  you  may  intend  to 
investigate  certain  parts  only,)  it  will  be  right,  I 
think,  before  entering  upon  details,  *to  enume- 
■-  -^  rate  the  different  sorts  of  tenancy^  strictly  so 
called,  knoAvii  to  the  law  of  England,  and  to  point 
out  very  briefly  their  peculiarities. 

The  first  and  highest  tenancy  kno"\vn  to  the  law  is, 
as  you  are  all  aware,  tenancy  in  fee-simple!'  Such  a 
tenant  has  the  entire  uncontrolled  disposition  of  the 
property.  He  must,  however,  as  I  have  already 
stated,  hold  of  some  person,  otherwise  he  would  not 
be  a  tenant  at  all,  and  that  person,  if  the  estate  was 
created  at  any  time  subsequently  to  the  year  1290, 
must  be  the  sovereign,  for,  in  that  year,  an  Act  of 
Parliament  was  passed,  which  from  the  Latin  words 
used  at  its  commencement,  we  call  the  Statute  of 
Qxda  Emptores  [18  Ed.  1,  c.  1.],  which  prohibits  any 
subject  from  conve)dng  lands  to  be  held  of  himself 
in  fee-simple,  and  directs  that,  for  the  future,  when 
lands  are  conveyed  in  fee-simple,  the  grantee  of 
them  shall  not  become  the  tenant  of  the  grantor, 
but  shall  be  the  tenant  of  the  person  of  whom  the 

^  Litt.  s.  1 ;  Watkins  on  Convey,  bk.  1,  c.  ix. 


TENANCY    IN     FEE    SIMPLE.  37 

grantor  held.  And,  this  is  not  a  matter  altogether 
unimportant,  because,  if  the  tenant  of  lands  in  fee- 
simple  were  to  die  without  heirs  and  without  a  will, 
the  lands  would  escheat  to  the  person  of  whom  they 
were  immediately  held.^  And  in  this  way  *property 
does,  even  at  the  present  day,  occasionally  ^ 
escheat  to  the  sovereign,  of  whom  by  far  the  •-  -' 
greater  part  of  the  lands  in  the  kingdom  are  now 
holden,  although  there  are  still  some  estates  in  fee- 
simple  created  previously  to  the  year  1290,  which 
were  then  held  and  still  continue  to  be  held  of 
subjects. '(a) 

^  See  Co.  Litt.  13  a;  Com.  Dig.  Escheat.  Property  held  upon 
trust  or  mortgage  does  not  escheat  by  the  attainder  or  conviction  of 
the  trustee  or  mortgagee.  13  &  14  Vie  c.  60,  s.  46.  This  act 
provides  also  for  the  case  of  the  death  of  the  trustees  or  mortgagees 
intestate  and  without  heirs.  See  ss.  15  and  19 ;  and  Sugden's 
Essay  on  the  Real  Property  Statutes,  c.  viii. 

^  Any  examination  of  the  incidents  of  tenancies  in  fee-simple 
would  be  out  of  place  here.  The  subject  is  shortly  and  clearly  dealt 
with  in  Watkins  on  Convey,  bk.  1,  c.  ix. 

(a\  In  America  the  existence  of  tenure  is  expressly  negatived  in 
several  States,  viz. :  New  York,  South  Carolina  and  Michigan,  and  in 
most,  if  not  all  the  others,  the  ownership  of  land  is  as  absolute  and 
direct,  as  is  compatible  with  the  existence  of  society  where  the  right 
of  eminent  demesne  is  recognized ;  yet  it  would  not  be  safe  to  assert 
that  any  property  is  allodial.  By  the  Charter  of  Pennsylvania,  the 
Proprietary  held  his  estate  of  the  crown,  in  free  and  common  socage. 
(3  §  of  Charter.)  By  the  17th  and  18th  Sections,  William  Penn 
was  authorized  to  alien  any  portion  of  the  said  lands  to  be  held  of  the 
said  William  Penn,  his  heirs  or  assigns,  and  not  immediately  of  the 
king,  notwithstanding  the  Statute  quia  emptores,  and  the  divesting 
Act  27  November,  1779,  1  Smith's  Laws,  479,  &c.,  did  but  sub- 
stitute the  Commonwealth  of  Pennsylvania  for  the  Proprietaries.  It 
is  believed  that  all  the  States  in  which  the  common  law  forms  the 
basis  of  their  constitutions,  have  some  remnant  of  the  doctrine  of 


38  LANDLORD    AND    TENANT. 

The  next  species  of  tenancy  is  that  in  tail.  The 
nature  of  which  I  take  it  for  granted  that  you   are 

tenure,  witbout  wbicli  it  would  be  impossible  to  account  for  many  of 
tbeir  well  established  powers. 

« It  is  true,"  says  Judge  Jones,  in  his  syllabus  of  the  Law  of 
Land  Office  Titles  in  Pennsylvania,  "  the  fee  passes  free  and  clear 
of  all  restrictions  and  reservations  as  to  mines,  royalties,  quit-rents, 
or  otherwise,  excepting  the  fifth  part  of  all  gold  and  silver  ore  for 
the  use  of  the  Commonwealth,  yet,  fealty  remains  as  an  inseparable 
incident  to  the  estate  granted,  and  that  is  a  service,  and  escheat 
remains,  which  is  a  perquisite  and  fruit  of  tenure ;  and  finally,  the 
rules  of  the  common  law  regulating  the  descent  of  real  estate  remain, 
except  so  far  as  altered  by  Acts  of  Assembly,  and  these  are  of  feudal 
origin,  and  proceed  upon  the  fiction  or  principle  of  tenure." 

Since  the  above  was  written,  Judge  Sharswood's  Lecture  before 
the  Law  Academy  of  Philadelphia,  at  the  opening  of  the  Session  of 
1855-6,  has  been  published.  The  reader  will  there  find  this  subject 
thoroughly  discussed,  and  the  same  conclusion  arrived  at. 

Judge  Sharswood  adds  to  the  evidence  of  tenure  enumerated 
above,  ('  The  forms  and  language  of  our  conveyances,"  and  says, 
"By  the  Act  of  28  May,  1715,  all  deeds  and  conveyances  proved  or 
acknowledged,  and  recorded,  are  to  have  the  same  force  and  effect 
here  for  the  giving  possession  and  seisin,  and  making  good  the  title 
and  assurance,  as  deeds  of  feoff'ment  with  livery  and  seisin,  &c.  It 
is  obvious  that  prior  to  the  Act  of  Frauds  and  Perjuries  of  21  March, 
1772,  a  parol  feoff'ment  with  livery  was  a  valid  conveyance  of  lands ; 
and  in  the  first  case  which  arose  upon  the  construction  of  the  Act  of 
1715,  C.  J.  M'Kean  said  :  <  The  legislature  has  at  various  periods, 
and  on  a  variety  of  subjects,  departed  from  feudal  ceremonies  and 
principles  in  relation  to  the  transfer  and  descent  of  property,  but  in 
the  present  instance,  the  Act  of  Assembly  meant  only  to  give  to  a 
grant  of  lands,  a  greater  effect  upon  the  estate  on  recording  the  deed, 
than  could  previously  have  been  enjoyed  without  livery  of  seisin.' 
M'Kee's  Lessee  v.  Pfout,  3  Dall.  486.  « The  object,'  says  C.  J.  Gib- 
son, 'was  to  give  without  the  aid  of  feudal  ceremonies,  the  legal 
seisin  for  lawful  purposes.'  Desilver's  Estate,  5  Eawle,  113.  In 
both  these  cases  it  was  held,  that  the  act  did  not  mean  to  give  a 
common  deed  without  livery,  the  tortious  effect  of  a  feoffment  with 


TENANCY    FOR    LIFE.  39 

well  acquainted  with,^  and  also  with  the  modes 
in  which  they  may  be  barred  and  turned  into  a 
fee-simple.^(a)  While  it  continues  an  estate  tail, 
however,  it  is  held  of  the  person  by  whom  it  was 
originally  created  or  his  representative. 

Next  come  the  various  species  of  estates  for  life^ 
whether  for  the  life  of  the  tenant,  or  pur  auter  vie^^ 
whether  for  one  life  or  for  several,  whether  created 
by  act  of  the  party,  as  the  estates  for  life  limited 
in  a  settlement,  or  by  act  of  the  law,  as  in  the  case 
of  dovoer^^   and   tenancy   hy   the   curtesy}^     All   these 

^  See  Litt.  ss.  13  to  31 ;  Watkins  on  Convey,  bk.  1,  c.  viii.  At 
common  law,  before  the  statute  of  Westminster  the  2nd  (13  Edw. 
1,  St.  1,  c.  1,)  the  tenant  in  tail  was  owner  of  a  conditional  fee. 
Lit.  s.  13. 

9  See  the  3  &  4  Wm.  4,  c.  74  (passed  August  28th,  1833);  and 
Sugden's  Essay  on  the  Real  Property  Statutes,  c.  ii. 

"Litt.  ss.  56,  57;  Watkins  on  Convey,  bk.  1,  c.  iv.  and  v. 

"Litt.  ss.  36  to  55;  3  &  4  Wm.  4,  c.  105;  Watkins  on  Convey, 
bk.  1,  c.  vi.  ;  Sugden's  Essay  on  the  Real  Property  Statutes,  c.  iii. 
And  as  to  the  assignment  of  dower,  see  Doe  d.  Riddell  v.  Gwinnell,  1 
Q   B.  682.     41  E.  C.  L.  R.  728. 

^2  Litt.  s.  35;  Watkins  on  Convey,  bk.  1,  c.  vii. 

livery.  In  speaking  on  that  subject  in  Lyle  v.  Richards,  9  S.  &  R. 
334,  C.  J.  Tilghman  says :  <  What  would  be  the  effect  of  a  feoffment 
with  livery  is  another  question,  and  I  give  no  opinion  on  it.  It  is  a 
kind  of  conveyance  out  of  use ;  indeed  I  have  never  heard  of  one  in 
Pennsylvania.'  I  have,  however,  seen  an  early  deed  for  a  lot  in 
Philadelphia,  with  an  endorsement  of  livery  of  seisin,  and  in  another 
chain  of  title,  met  with  a  Letter  of  Attorney  to  make  livery.  It  is 
worthy  of  remark,  as  observed  by  C.  J.  Tilghman,  that  in  the  case  of 
M'Kee  v.  Pfout,  mentioned  before,  where  the  counsel  for  the  plaintiff 
argued  against  the  forfeiture,  it  was  taken  for  granted  by  them,  that 
a  feoffment  with  livery  would  have  occasioned  a  forfeiture,  nor  did 
any  intimation  to  the  contrary  fall  from  the  Court.     And  Lyle  v. 

(a)  See  Kent's  Com.,  Vol.  4,  p.  14,  and  in  notes.  In  Penna.  Act, 
27  April,  1855.     Pam.  Laws,  p.  368. 


40  LANDLORD    AND    TENANT. 

hold  of  the  immediate  reversioner,  as  *does  that 

r  71  •     •  • 

'-     -■  other  description  of  tenant  for  life,  denominated 

tenant  in   tail   after  possibility  of  issue   extinct^^  who 

differs  from  the  rest  in   this  particular,  that   ha\ing 

once   had   an   estate  of  inheritance   he   is   permitted 

to  cut  timber  and  do  other  acts  which  would  amount 

to  ivaste  in  an  ordinary  tenant  for  life,  and  might,  as 

such,  be  prevented  or  punished  by  the  reversion. 

Now  these  are  the  descriptions  of  freehold  tenancy 

known  to  the  law,  of  which,  after  the  present  lecture, 

it  is  not  my  intention  to  say  anything — since,  having 

only  a  limited  portion  of  time  to  dispose  of,  I  think 

it  best  to  devote  it  entirely  to  the  consideration  of 

those    tenancies    which    are    of    the    most    frequent 

practical    occurrence,    and,   these    being,    out   of    all 

question,  tenancies  not  of  a  freehold  character,  our 

attention  will,  in  the  succeeding  lectures,  be  devoted 

to  such  and  to  such  only.     There  are  indeed  some 

parts  of  England   in   which   tenancies   for   lives   are 

extremely  common,^'^  more  common  indeed  than  those 

of    a   chattel   nature,   and    are   accompanied   by  the 

ordinary  incidents  of  a  tenancy  for  years,  I  mean  a 

remunerating  rent  to  the  landlord,  or  a  fine  in  lieu 

of  one,  and  covenants  for  the  performance  of  certain 

duties  usually  imposed  on  tenants  for  a  limited  period. 

But,  though   these   freehold    tenancies   do,  in   these 

matters,  very  much  resemble  those  *of  which  it 

[81  ... 

•-     -^  is  my  intention  to  speak,  yet,  I  think  it  unne- 

13  See  Litt.  ss.  32  to  34;  Co.  Litt.  27  b. 

I'*  These  tenancies  are  also  very  common  iu  Ireland.      Furlong's 
Landl.  and  Ten.  bk.  2,  c.  iv. 

Richards,  in  which  it  was  held  that  a  common  recovery  suffered  by- 
tenant  for  life,  was  an  effectual  bar  of  contingent  remainders  depend- 
ent thereon,  could  only  rest  on  the  extension  of  the  feudal  principles 
of  alienation  and  tenure  to  this  State." 


TENANCIES  LESS  THAN  FREEHOLD.   41 

cessary  to  devote  any  separate  consideration  to  them, 
because  the  payment  of  the  rent  and  the  construction 
of  the  covenants  incident  to  them  are  regulated  by 
almost  precisely  the  same  rules  as  those  which 
regulate  the  same  points  in  the  case  of  a  tenancy 
for  years,  and  it  will  much  simplify  our  course  and 
prevent  useless  repetition,  if  we  consider  these  once, 
and  once  only. 

I  shall,  therefore  proceed  at  once  to  the  considera- 
tion of  those  tenancies  which  are  of  a  quality  inferior 
to  freehold,  and  these  are, 

1st.     Tenancies  ^/br  2/ear5. 

2ndly.     Tenancies  at  will. 

3rdly.     Tenancies  hy  sufferance. 

The  history  of  tenancies  for  years  is  curious.  In 
the  very  early  ages,  while  the  feudal  system  retained 
its  original  vigor,  estates  of  a  less  quality  than 
freehold  were  unknown.  There  was  then  no  such 
thing  as  an  estate  for  years ;  the  owner  of  the  soil 
did  indeed  sometimes  covenant  with  a  x^articular 
person  that  he  shoidd  enjoy  the  right  of  dwelling 
on  and  cultivating  a  portion  of  land  for  a  certain 
definite  period,  but  this  did  not  constitute  the 
person  who  occupied  it  a  tenant  at  all.  It  was 
considered  as  a  mere  agreement  between  him  and 
the  freeholder,  conferring  no  estate,  and  creating  no 
tenure.  If  the  freeholder  turned  him  out  on  the 
following  day,  he  had  no  remedy  by  which  he  could 
recover  the  possession.     He   might,  indeed,  maintain 

an  action  for  the  breach  of  the  agreement  *to     „ 

r  91 
allow  him  to  occupy,  but  he  was  unable  to  re-  '-     -" 

cover  the  land,  since  the  law  did  not  recognize  him 
as  possessing  any  estate  in  it.^^ 

The   first   step   towards    establishing   him    on   his 
^*  See  Bac.  Ab.  Leases. 


42  LANDLORD    AND     TENANT. 

present  footing  was  the  invention  of  a  particular  form 
of  the  idtU  of  covenant^^  in  which  he  was  made  to 
demand  his  term^  as  well  as  damages  for  the  injury 
done  him  in  ousting  him;  but  as  this  was  only  a 
form  of  the  action  of  covenant,  and  as  he  could  only 
maintain  that  action  against  the  person  who  had 
covenanted  with  him,  (for  it  was  not  till  long  after- 
wards that  covenants  were  held  to  bind  the  assignee 
of  the  lessor),  if  it  so  happened  that  his  lessor  had 
aliened  the  estate,  or  had  created  a  particidar  estate 
of  freehold  in  it,  he  had  no  means  of  wresting  the 
possession  from  the  alienee  or  grantee  of  such 
particular  estate,  and  consequently  was  left  altogether 
to  his  action  for  damages. 

Thus  matters  stood  until  the  reign  of  Henry  III., 
at  which  period  Bracton^  from  whom  we  derive  our 
knowledge  of  the  progress  of  the  law  relative  to  this 
matter,  informs  us  that  it  was  determined  to  provide 
a  full  remedy  for  the  grantee  in  such  cases ;  and, 
for  this  piu'pose,  a  ^vrit  was  invented  entitled  a  "wait 
of  Quare  ejecit  infra  terminum*  This  lay 
•-  -•  against  the  person  actually  in  possession  of  the 
land,  and  called  upon  him  to  show  cause  why  he 
had  ousted  the  termor  within  his  term,  which,  if 
he  coidd  not  do,  the  termor  had  judgment  to  recover 
it,  and  might  still  bring  an  action  of  covenant  against 
his  lessor." 

But  this  writ  being  levelled  at  the  mischief  done 
to    tenants    by   means  of    ahenations   by  their    own 

^^As  to  the  early  history  of  the  action  of  ejectment,  see  Bracton, 
bk.  4,  foL  220.  cap.  36;  Hale's  Hist,  of  the  Common  Law,  c.  8,  p. 
201  (6th  Edit.) ;  Bac.  Ab.  Leases;  Reeve's  Hist,  of  English  Law, 
vol.  i.  p.  341,  vol.  iii.  p.  29,  390,  vol.  iv.  p.  165 ;  Adams  on  Eject. 
c.  1;  Stephen  on  Plead.  12,  13. 

17  See  Bracton,  bk.  4,  fol.  220,  cap.  36. 


TENANCIES    LESS    THAN    FREEHOLD.        43 

lessors,  was  not  so  framed  as  to  embrace  the  case  of 
a  tenant  for  years  ousted,  not  by  his  own  lessor,  or 
any  person  claiming  under  him,  but  by  the  tortious 
act  of  a  mere  stranger.  In  such  cases,  the  tenant 
had  no  remedy  but  to  apply  to  his  lessor  to  bring 
a  real  action  to  recover  back  the  seisin  of  the  free- 
hold from  the  trespasser,  and  then,  the  lessor  having 
obtained  the  seisin,  the  tenant's  right  to  have  his 
term  again  attached,  and  in  this  circuitous  manner 
it  became  revested  in  him.  But,  in  the  reign  of 
Edward  III.  a  remedy  was  created  for  him  in  these 
cases  also,  by  the  invention  of  the  writ  of  the 
Ejectione  firmce^  the  very  writ  by  which  actions  of 
ejectment  are  now  commenced.^^  This  writ,  tl>e  first 
instance  of  which  occurs  in  the  44th  year  of  King 
Edward  III.,  did  not,  however,  originally*  p*-,-,-, 
enable  the  termor  to  recover  the  term,  but  '-  -• 
only  damages  against  the  trespasser.  To  recover 
the  term  itself  he  was  obliged  to  resort  to  a  Court 
of  Equity  Avhich,  about  this  time,  as  Chief  Baron 
Gilbert  informs  us  at  page  2  of  his  Treatise,  began 
to  interfere  for  his  protection.  At  last  the  Courts  of 
law,  however,  gave  him  a  complete  remedy,  not  by 
the  invention  of  any  new  writ,  but  by  altering  the 
judgment    upon     the    old    writ    of    ejectment,   and 

^8  When  this  Lecture  was  written,  and  before  the  Common  Law 
Procedure  Act,  1852  (15  &  16  Vic.  c.  76,)  the  action  of  ejectment 
was  supposed  to  be  commenced  by  the  original  writ  which  is  men- 
tioned above,  although,  in  fact,  no  writ  was  sued  out,  but  the 
proceedings  were  begun  by  the  declaration.  It  is  now  commenced  by 
a  writ  in  the  form  given  by  that  act,  which  is  issued  like  an  ordinary 
writ  of  summons.     See  ss.  168,  169,  and  sched.  A,  No.  13. (a) 

(a)  In  most  of  the  United  States  the  action  of  ejectment  is  com- 
menced by  summons;  the  Pennsylvania  act  making  the  change 
was  passed  in  1806. 


44  LANDLORD    AND    TENANT. 

giving  judgment  that  he  should  recover  his  term  as 
well  as  damages.  This  was  a  singular  stretch  of 
power  on  the  part  of  the  Courts,  and  one  on  which 
probably  no  Court  would  venture  at  the  present 
day.  And  what  is  most  singular  about  it  is,  that 
we  do  not  know  even  the  precise  period  at  which 
it  took  place,  though  it  is  ascertained  to  have  been 
some  time  between  1455  and  1458 ;  since,  in  the 
former  year  there  is  a  reported  assertion  by  one  of 
the  Judges,  that  damages  only  are  recoverable  in 
ejectment  ;^^  and,  in  the  latter  year,  a  reported 
assertion  at  the  Bar,  that  the  term  likewise  is  re- 
coverable.^°  Thus  were  tenants  for  years  at  last 
placed  on  the  same  level  as  freeholders,  with  regard 
to  the  security  of  their  estates,  and  the  facility  of 
their  remedy  when  dispossessed.  Indeed,  with  re- 
gard to  the  remedy,  they  had  arrived  at  a  better 
position  than  the  freeholder,  for  we  all  know  that 
^,^  *the  real  actions,  which  were  formerly  the 
"-  -■  remedies  made  use  of  by  the  freeholder, 
became  almost  entirely  disused,  and  that  of  eject- 
ment, which  had  been  invented  for  the  sole  use  of 
the  owner  of  the  chattel  interest,  substituted  in 
their  place. 

Such,  then,  being  the  origin  of  chattel  interests 
in  land,  let  us  consider  the  three  classes  into  wliich 
they  are  distributed ;  namely, 

1st.     Estates  for  years  ; 

2ndly.      "      at  loill;  and 

3rdly.       "      hij  sufferance. 

Per  Chocke,  J.,  Mich.  T.,  33  Hen.  6,  fol.  42. 
2°  See  Brooke  Ab.  Part  2,  Quare  ejecit,  fol.  167.     The  first  entry 
of  a  judgment  of  recovery  of  the  term  is  of  the  date  of  1499.     See 
Kast.  Entr.  253  a;  and  the  authorities  collected  in  the  note  to  Doe 
d.  Poole  V.  Errington,  1  A.  &  E.  756.     (28  E.  C.  L.  R.,  p.  197.) 


TENANCY    FOR    TEARS.  45 

An  estate  for  years  is  thus  described  by  Littleton, 
at  sec.  58  of  his  Tenures.  "  Tenant  for  term  of  years 
is  where  a  man  letteth  lands  or  tenements  to  another 
for  term  of  certain  years,  after  the  numher  of  years 
that  is  accorded  hetween  the  lessor  and  the  lessee^ 
and  the  lessee  enter etli  hy  force  of  the  lease,  then  is  he 
tenant  for  years."  This  definition  of  Littleton's,  like 
every  other  given  by  that  most  accurate  of  legal 
writers,  contains  everything  material  to  ascertain  the 
nature  of  the  estate.  It  is  said  to  be,  "^y/^ere  a 
man  letteth  to  another,^''  for  there  must  be  a  lessor 
and  lessee.  It  must  be  "^br  term  of  certain  years," 
for  if  the  term  is  left  uncertain,  the  estate  would 
be  at  will,  not  an  estate  for  years.  And,  "  when 
the  lessee  entereth  hy  force  of  the  lease,  then  is  he  tenant 
for  years,"  for  (except  in  the  case  of  a  lease  made 
under  the  Statute  of  Uses,  in  which  case  the  pos- 
session is  transferred  to  the  lessee  by  that  statute), 

until  he  has  entered  *by  virtue  of  the  lease, 

[131 

he  has  not  an  estate,  but  only  what  lawyers     "-       -• 

call  an  interesse  termini^^{a)  which  would  not  be  suffi- 

2^  Where  a  lease  is  to  commence  at  once,  but  the  lessee  has  not 
entered,  or  where  it  is  not  to  commence  until  a  future  period,  the 
lessee  has  only  a  right  of  entry,  or  interest  in  the  term.  This 
interest  is  merely  executory,  and  the  tenant  is  not  possessed  of  the 
term  until  entry.  Com.  Dig.  Estates  hy  grant  (Gr.  14);  1  Wms. 
Saund.  250  f  (1).  A  lessee  who  has  only  an  interesse  termini  may 
grant  away  his  interest  to  another ;  but  as  he  has  no  estate,  a  release 
to  him  by  the  lessor  (which  does  not  operate  under  the  Statute  of 

(a)  In  legal  contemplation  the  right  to  the  possession,  is  in  the 
lessor  as  against  a  third  person,  until  the  contract  is  consummated  by 
the  entry  of  the  lessee.  When  entry  is  made,  such  a  right  of 
possession  is  transmuted  from  the  lessor  to  the  lessee,  as  will  enable 
the  latter  to  maintain  ejectment.  Sennett  v.  Bucher,  3  Penna.  394. 
See  4th  Kent's  Com.  97. 


46  LANDLORD    AX  D     TENANT. 

cient   to   enable   him   to   maintain   trespass^^   against 

^  a  stranger  trespassing  *upon  the  land;    but, 

'-       -^     when   he  has  once    entered,  he  becomes  pos- 

Uses)  will  not  enlarge  his  interest ;  see  Co.  Litt.  46  b,  270  a ;  and 
the  judgment,  in  Doe  d.  Eawlings  v.  Walker,  5  B.  &  C.  118  ;  (11  E. 
C.  L.  E..  171) ;  although  it  will  extinguish  the  rent  as  completely  as 
an  express  release  of  it  would,  Co.  Litt.  270  b.  An  assignment  by 
the  lessee  to  the  lessor  will  extinguish  the  inieresse  termini,  Salmon 
V.  Swann,  Cro.  Jac.  619 ;  and  the  same  consequence  follows,  it 
seems,  from  a  release  by  the  lessee  to  the  lessor.  Watkins  on 
Convey.  36,  note,  9th  edit.  A  mere  interesse  termini  will  not 
merge  in  the  subsequently  acquired  freehold,  because  merger  is  the 
union  of  two  estates.  Doe  d.  Rawlings  v.  Walker,  nhi  S7tp.  The 
lessee  may  enter  notwithstanding  the  death  of  the  lessor;  and  if  the 
lessee  dies  before  entry,  his  personal  representative  may  enter.  Co. 
Litt.  16  b.  Use  and  occupation  will  not  lie  unless  there  has  been 
an  actual  entry  by  the  lessee,  or  by  one  of  several  lessees  on  behalf 
of  the  others.  Edge  v.  Strafford,  1  Cr.  &  J.  391;  Lowe  v.  Ross,  5 
Exch.  553;*  Glen  v.  Dungey,  4  Exch.  61.*  In  Keyse  v.  Powell,  2 
E  &  B.  132,  (75  E.  C.  L.  R.  132),  a  curious  question  arose.  A 
copyhold  close,  containing  an  unopened  coal-mine,  had  been  let  to  a 
tenant  from  year  to  year:  the  surface  was  occupied  by  him,  and  it 
did  not  appear  that  there  had  been,  in  the  demise,  any  exception  or 
reservation  of  the  mine.  Whilst  this  tenancy  continued,  the  copy- 
holder in  fee  granted  the  mine  to  the  tenant  and  to  another  person. 
It  was  held  that  the  tenant  was,  before  the  grant  of  the  mine,  in 
possession  of  it  by  virtue  of  his  tenancy  from  year  to  year,  although 
without  the  right  to  work  it;  and  consequently,  that  by  the  grant 
he  and  the  other  grantee,  for  whose  benefit  his  possession  enured, 
became  possessed  of  the  mine  for  the  term  granted,  without  any 
actual  entry,  and  had  not  a  bare  interesse  termini  in  it 

22  Even  where  a  lease  operates  under  the  Statute  of  Uses 
(27  Hen.  8,  c  10,)  the  lessee  cannot  maintain  trespass  before 
entry,  although  the  statute  executes  the  use.  Viner  Ab.  Trespass 
(S  )  pi.  13,  14;  Geary  v.  Bearcroft,  Carter,  66;  Com.  Dig. 
Trespass  (B.  3.)  Nor  can  a  lessee  under  a  lease  opemtiug  at 
common  law  maintain  trespass  before  entry,  for  actual  possession  is 
necessary  in  order  to  support  this  action  in  respect  of  real  property. 


TENANCIES    LESS    THAN    FREEHOLD.        47 

sessed  for  his  term,  which  although  designated  by 
lawyers  in  every  case  a  term  of  years,  may  be  for  less 
than  a  year,  as  for  a  half-year,  quarter,  or  a  month,  or 
merely  a  few  days ;  for  to  use  the  words  of  Sir  William 
Blackstone,  "  If  the  lease  he  hut  for  half  a  year,  or  a 
quarter,  or  any  less  time,  this  lessee  is  respected  as  a  tenant 
for  years,  and  is  styled  so  in  some  legal  proceedings,  a 
year  heijig  the  shortest  term  which  the  laio  in  this  case 
takes  notice  of"^^Xa)  But,  be  it  for  a  short,  or  be  it  for 
a  long  term,  it  is  a  requisite  of  this  sort  of  estate  that 
it  be  for  a  time  *  certain;  for  if  A.  grant  to  B.  for  r*!  c-i 
as  many  years  as  he  shall  live,  this,  being  uncer- 
tain, is  no  term  of  years ;  (Co.  Litt.  45  b ;)  and,  if  it  want 
the  formalities  requisite  to  pass  a  freehold  interest,  it 
passes  no  estate  at  all;  but  if  A.  lease  to  B.  for  ninety- 
nine  years,  or  for  nine  hundred  and  ninety-nine  years, 

See  Com.  Dig  Trespass  (B.  2,)  (B.  3,);  Bac.  Ab.  Leases  (M.) ; 
Revett  V.  Brown,  5  Bing.  7,  (15  E.  C.  L.  R,  444);  and  the  judg- 
ment in  Wheeler  v.  Montefiore,  2  Q.  B.  142,  (42  E.  C.  L.  R.  605). 
It  is  otherwise  with  respect  to  goods  the  owner  of  which  may  bring 
trespass  or  trover,  although  his  possession  of  them  was  only  con- 
structive at  the  time  of  the  injury  complained  of:  for  the  property  in 
goods  draws  after  it  the  possession.  2  Wms.  Saund.  47  a;  Turner 
V.  Ford,  15  M.  &  W.  212.*  The  personal  occtipotion  of  land  is  not, 
however,  necessary  in  order  to  maintain  trespass  in  respect  of  it ;  it 
is  sufficient  if  the  plaintiff  is  in  actual  possession  by  his  servant,  or 
agent.  Bertie  v.  Beaumont,  16  East,  33 :  Reg.  v.  Wall,  Lynn,  8 
A.  &  E.  379,  (35  E.  C.  L.  R.  409).  Where  the  interest  of  a  tenant 
of  land  is  determined  by  the  death  of  a  tenant  for  life  under  whom 
he  holds,  the  possession  ceases  with  the  interest,  and  he  cannot 
maintain  trespass  unless  there  is  afterwards  some  actual  occupation 
by  him,  or  he  does  some  act  indicating  an  intention  to  retain  the 
possession.     Brown  v.  Notley,  3  Exch.  219.* 

2^  See  2  Black.  Comm.   140 ;    Litt.  s.  67,  and  Bac.  Ab.  Leases 
(L.  3.) 

(a)  Shaffer  v.  Sutton,  5  Binn.  228. 


48  LANDLORD    AND    TENANT. 

if  he  shall  so  long  live,  this  is  an  estate  for  term  of 
years ;  for  it  is  certain  that  it  cannot  last  beyond  the 
number  of  years  mentioned ;  and  though  it  may  deter- 
mine sooner  if  A.  die,  as  he  probably  will,  before  they 
have  expired,  still  that  does  not  render  the  estate  un- 
certain, but  only  renders  it  defeasible  by  a  condition 
subsequent.^ 

A  tenancy  at  will  takes  place  where  the  demise  is 
for  no  certain  /en??,  but  to  continue  dui'ing  the  joint  loill 
r*-i  ^-i  of  both  parties,  and  no  longer.^^  It  is  the  *dis- 
tinguishing  incident  of  this  sort  of  tenancy,  that 
the  landlord  may  put  an  end  to  it  when  he  thinks 
proper;  and  that,  not  merely  by  expressly  signifying  to 

24  See  Co.  Litt.  45  b.  It  is  essential  to  the  very  existence  of  a  term 
of  years  that  there  should  be  a  time  prefixed  beyond  which  it  cannot 
continue.  The  time  must  be  prefixed ;  it  is  not  sufficient  that  a 
period  must  come  beyond  which  the  lease  cannot  last.  In  the 
instance  put  in  the  text,  of  a  grant  to  B.  for  so  many  years  as  he 
shall  live,  the  lease  must  determine  on  B's  death,  and  his  death  must 
happen  sooner  or  later.  Yet  this  is  not  a  term  of  years,  for,  as  is 
said  by  Lord  Coke,  "  licet  nihil  certius  sit  morte,  nihil  tamen  incertius 
est  Jiord  mortis."  Co.  Litt.  45  b.  As  to  the  distinction  between 
conditions  subsequent  and  conditions  precedent,  see  Bac.  Ab.  Condi- 
tion (I);  Brook  v.  Spong,  15  M.  &  W.  153  ;*  Egerton  v.  The  Earl 
of  Brownlow,  4  H.  of  Lords  C.  1 ;  and  post  Lecture  IV. 

2^  The  defiuition  of  a  tenancy  at  will,  given  by  Littleton,  is  as 
follows : — "  Tenant  at  will  is  where  lands  or  tenements  are  let  by 
one  man  to  another  to  have  and  to  hold  to  him  at  the  will  of  the 
lessor,  by  force  of  which  lease  the  lessee  is  in  possession.  In  this 
case  the  lessee  is  called  tenant  at  will  because  he  hath  no  certain  or 
sure  estate,  for  the  lessor  may  put  him  out  at  what  time  it  pleaseth 
him."  s.  68.  To  this  definition  Lord  Coke  adds  :  "  It  is  regularly 
true  that  every  lease  at  will  must  in  law  be  at  the  will  of  both 
parties,  and,  therefore,  when  the  lease  is  made  to  have  and  to  hold 
at  the  will  of  the  lessor,  the  law  implieth  it  to  be  at  the  will  of  the 
lessee  also."     Co.  Litt.  55  a.  (a) 

la)  And  vice  versa.  See  Mhoon  v.  Drizzle,  3  Dev.  414. 


TENANCY    AT    WILL.  49 

the  tenant  his  intention  so  to  do,  but  by  performing  any 
act  inconsistent  with  the  duration  of  the  tenant's  interest; 
thus,  for  instance,  in  Doe  d.  Bennett  v.  Turner,  7  M,  & 
W.  226,^^  the  landlord  had  entered  on  the  premises 
and  cut  some  stone  without  the  permission  of  his  tenant 
at  will.  This  act  was  held  to  operate  as  a  determination 
of  the  tenancy.  See  also  Doe  d.  Price  v.  Price,  9  Bing. 
356.^  So,  on  the  other  hand,  the  tenant  *may,  ^^.  «, 
on  his  part,  put  an  end  to  the  holding  when  he 

2^  This  case  went  down  to  a  new  trial,  at  which  the  jury  was 
directed  in  accordance  with  the  judgment  of  the  Court  of  Exchequer 
in  the  earlier  stage  of  the  case.  To  this  direction  a  bill  of  exceptions 
was  tendered.  The  Court  of  Exchequer  Chamber  held,  however, 
that  the  ruling  was  correct.  See  Turner  v.  Doe  d.  Bennett,  9  M. 
&  W.  643.* 

27  The.  making  of  a  lease  by  the  lessor  at  will  to  commence  on  a 
future  day  determines  the  will  as  soon  as  the  lease  commences  in 
point  of  interest.  Dinsdale  v.  lies,  Raym.  224 ;  Hinchman  v.  lies, 
1  Ventr.  247.  It  is  not  determined  by  a  lawful  act  done  upon  the 
land  by  the  lessor,  as  if  he  cuts  down  trees  which  are  excepted  out  of 
the  lease.  Co.  Litt.  55  b;  see  also  Com.  Dig.  Estates  hy  grant,  (H. 
t),  H.  7,  H.  8.)  A  covenant  by  the  lessor  to  make  a  feoffment  does 
not  amount  to  a  determination  of  the  will  until  the  feoffment  is 
actually  made,  1  Roll.  Ab.  860,  1.  36 ;  but  a  feoffment  by  the  lessor 
with  livery  of  seisin  made  upon  the  land  determines  the  tenancy, 
although  the  tenant  at  will  be  off  the  laud  at  the  time,  and  have  no 
notice  of  the  determination  of  the  will.  Ball  v.  Cullimore,  2  Cr.  M. 
&  R.  120.*  The  lessor  may,  as  is  obvious,  determine  the  tenancy 
by  a  demand  of  possession,  or  by  a  notice  of  its  determination  com- 
municated to  the  tenant;  and  the  notice  need  not  be  given,  or  the 
demand  made,  upon  the  land.  Co.  Litt.  55  bj  Goodtitle  v.  Herbert, 
4  T.  R.  680;  Doe  d.  Jones  v.  Jones,  10  B.  &  C.  718.  (21  E.  C. 
L.  R.  303.)  Even  where  the  owner  of  the  freehold  only  stated  to 
the  tenant  at  will  that  unless  he  paid  what  he  owed  measures  would 
be  taken  without  delay  to  recover  the  possession  of  the  property,  the 
tenancy  was  held  to  be  sufficiently  determined;  the  implied  offer  to 
retain  the  possession  not  appearing  to  have  been  accepted.     Doe  d. 

4 


50  LANDLORD    AND    TENANT. 

thinks  proper,  and  this  he  may  do,  as  we  are  infoi-med 
by  Lord  Coke,  (1  Inst.  55  b,  57  a),  by  committing  any 
act  inconsistent  with  the  nature  of  his  estate ;  for  in- 
stance, by  assigning  the  land  to  another,  for  a  tenancy  at 
will  is  not  assignable.^^  And  if  an  attempt  be  made 
to  assign  it,  the  assignee,  if  he  enters  on  the  land,  be- 
comes a  trespasser.  So  he  may  put  an  end  to  his  tenancy 
by  an  express  declaration  that  he  will  hold  no  longer ; 
but  in  order  to  render  this  declaration  operative  he 
must  go  out  of  possession.-^(«) 

r*im        *There  is  another  remarkable  difference  be- 
tween a  tenancy  at  will  and  one  for  years;  a 

Price  V.  Price,  9  Bing.  356.  Where  the  lessor  becomes  insolvent, 
and  his  reversion  is  consequently  transferred  to  his  assignees  by  the 
operation  of  fhe  Insolvent  Act,  the  vesting  order,  with  knowledge 
thereof  by  the  tenant,  is  a  determination  of  the  tenancy  at  will. 
Doe  d.  Daviea  v.  Thomas,  G  Exch.  85i  j*  see  also  Pinhorn  v.  Souster, 
8  Exch   7G3;*  and  the  notes  to  Clayton  v.  Blake,  2  Smith's  L.  C. 

n.{h) 

^^  But  an  assignment  by  the  tenant  at  will  does  not  put  an  end  to 
the  tenancy  unless  the  lessor  at  will  have  notice  of  it.  Carpenter  v. 
Colins,  Yelv.  73  ;   Pinhorn  v.  Souster,  8  Exch.  763.* 

^^Co.  Litt.  55  b,  note  (15).  A  tenant  at  will  may  create  a  tenancy 
at  will  available  as  against  himself.  See  the  observation  of  Mr. 
Justice  Patteson,  in  Doe  d.  Groody  v  Carter,  9  Q.  B.  865,  (58  E.  C. 
L.  R.  862).  It  appears  from  the  same  case,  that  if  a  tenant  at  will 
lets  the  premises  to  a  third  person  at  will,  and  afterwards  takes  a 
conveyance  of  the  property,  the  tenancy  at  will  created  by  him  will 
not  be  affected.  A  tenant  at  will  cannot,  strictly  speaking,  commit 
waste )  but  if  he  does  any  act  which,  if  committed  by  a  tenant  for 
years,  would  amount  to  voluntary  waste,  the  tenancy  is  determined. 
Litt  s.  71;  Co,  Litt.  57,  a;  pod,  Lect.  VII. 

(o)  The  tenant  at  will  becomes  a  trespasser  by  unreasonable  delay 
in  moving  after  the  estate  is  determined.  Ellis  v.  Paige,  1  Pick.  47; 
Rising  V.  Stanuard,  17  Mass.  282. 

(b)  Mhoon  V.  Drizzle,  3  Dev.  414. 


TENANCY    AT    WILL.  51 

tenancy  for  term  of  years  is  always  created  by  express 
contract  between  the  parties,  for  it  must  be,  as  I  have 
said,  for  a  term  certain^  and  that  term  cannot  be  fixed 
save  by  express  contract.  But  an  estate  at  will  may, 
and  frequently  does,  arise  by  implication ;  for  instance, 
in  the  ordinary  case  where  A.  agrees  to  convey  land  to 
B.,  and  B.  enters  upon  it  before  any  conveyance  is  exe- 
cuted, in  this  case  B.  is  not  a  trespasser,  for  he  has  the 
permission  of  the  owner ;  he  has  no  freehold,  for, 
though  in  equity  the  land  is  vested  in  him,  yet,  at  law^ 
there  has  been  no  conveyance  capable  of  transferring 
the  seisin  to  him ;  he  is  not  tenant  for  years,  for  he 
does  not  hold  for  a  tenn  certain  ;^°  he  is  therefore 
tenant  at  will.  See  Doe  v.  Chamberlain,  5  M.  Sy  W. 
14;*  Howard  v.  Shaw,  8  M.  &  W.  119.'^*  In  fact, 
whenever  you  find  a  person  in  possession  of  land,  in 
which  he  has  no  freehold  estate  nor  tenancy  for  any  cer- 
tain term,  and  which  he  nevertheless  holds  *by  r^iq-. 
the  consent  of  the  true  owner,  that  person  is 
tenant  at  will;  for  instance,  in  Doe  v.  Jones,  10  B.  & 
C.  718,  where  the  tmstees  of  a  dissenting  congregation 
had  put  a  minister  into  possession  of  a  dwelling-house 

30  Ante,  p.  15. 

21  The  mere  occxipation,  however,  of  the  land  by  the  purchaser 
under  circumstances  such  as  those  mentioned  in  the  text,  is  not 
sufficient  to  enable  the  vendor  to  sue  him  for  use  and  occupation. 
There  must  be  a  contract,  express  or  implied,  to  pay  for  the  occupa- 
tion. See  Tew  v.  Jones,  13  M.  &  W.  12,*  in  which  case  the  vendor 
was  in  possession  at  the  time  of  and  after  the  conveyance,  and  the 
action  was  brought  by  the  vendee.  In  Winterbottom  v.  Ingham,  7 
Q.  B.  611,  (53  E.  C.  L.  R.  611,)  the  vendee  of  an  estate  was  let 
into  the  possession  of  the  premises  whilst  the  title  was  under  investi- 
gation, and  the  contract  of  sale  was  afterwards  determined.  It  was 
held  that  the  vendor  could  not,  upon  these  grounds  alone,  recover 
for  use  and  occupation,  although  the  jury  found  that  the  occupation 
had  been  beneficial.     See  alsopo.s<,  Lect.  V. 


52  LANDLORD    AND     TENANT. 

and  chapel,  it  was  held  by  the  Queen's  Bench  that  at 
laAv  he  was  their  tenant  at  will,  and  that  they  could 
put  an  end  to  his  interest  by  simply  demanding  posses- 
sion.^-^(a) 

Such  being  the  general  nature  of  a  tenancy  at  ivilJ., 
namely,  that  it  exists  during  the  joint  will  of  both 
parties,  any  act  by  either  of  whom  inconsistent  with  its 

32  And  see  Doe  d.  Nicholl  v.  M'Kaeg,  10  B.  &  C.  721,  (21  E.  C. 
L.  R.  304,) ;  Burton  app.  v.  Brooks  resp.,  11  C.  B.  41,  (73  E.  C. 
L.  R.  40,). 

(a)  Tenancies  at  will  are  not  favored  by  the, courts.  In  Timmins 
V.  Rowlison,  3  Burr.  1609,  Mr.  J.  Wilmot  said,  "  In  the  country, 
leases  at  will,  being  found  extremely  inconvenient,  exist  only  notion- 

ally." 

And  it  is  now  the  general  language  of  the  books,  that  a  tenancy 
at  will  cannot  arise  without  some  express  grant  or  contract,  and  that 
all  general  tenancies  are  constructively  tenancies  from  year  to  year. 
Preston  on  Abst.  of  Title,  p.  25,  4  Kent.  112;  Comyn  on  Land;  and 
Ten.  8 ;  Lesley  v.  Randolph,  4  Rawle,  123;  Thomas  v.  Wright,  9  S. 
&  R.  87 ;  Squires  v.  HuiF,  3  A.  J.  Marshall,  17 ;  Sullivan  v.  Endors, 
3  Dana.  66;  Du  Bree  v.  Lees,  2  Bl.  Rep.  1173;  Richardson  v. 
Langridge,  4  Taunt.  131. 

One  who  is  rightfully  in  possession  of  land,  but  with  no  intention 
of  becoming  a  tenant  in  the  ordinary  acceptation  of  the  term,  is  a 
tenant  at  will,  one  for  instance  who  comes  into  possession  under  a 
contract  with  the  owner  for  the  purchase.  Proprietors  of  No.  6  v. 
McFarland,  12  Mass.  325;  Love  v.  Edmonstone,  1  Iredell,  152. 
And  a  grantor  continuing  in  possession  of  the  granted  premises  after 
a  conveyance.  Carrier  v.  Earle,  1  Shep  216.  So  a  judgment  debtor 
whose  lands  have  been  sold  on  execution  holding  over  after  the  sale, 
by  the  consent  of  the  purchaser,  to  whom  he  pays  rent,  has  in  New 
York  been  held  a  tenant  at  will.  Nichols  v.  Williams,  8  Cow.  13, 
So  after  a  lease  has  expired  by  its  own  limitation,  and  the  tenant 
holds  over,  he  is  said  in  Overdeer  v.  Lewis,  1  Watts  &  Ser.  90,  to 
be  tenant  at  will.  He  would  be  more  properly  described  as  a  tenant 
by  sufferance. 


TENANCY  FROM  YEAR  TO  YEAR.     Od 

nature  will  determine  it,  it  follows  that  it  is  not  assign- 
able, since  the  very  attempt  to  assign  would  operate  as 
a  determination  of  the  will  of  the  party  assigning  to 
remain  any  longer  tenant,  and  that  it  may  be  created 
either  by  express  terms  or  by  implication,^^  One 
very  important  incident  belonging  to  it  remains  to  be 
noticed,  I  mean  its  capability  of  being  extended  by 
certain  circumstances  into  a  tenancy  of  a  much  more 
permanent  description,  namely,  a  tenancy  from,  year  to 
year?^ 

*The  history  of  tenancies  from  year  to  year,    r^on-i 
now  an  exceedingly  important  class  of  chattel 
interests,  is  as  follows.     At  a  very  early  period  of  our 
law,  a  tenancy  strictly  at  will  was  found  to  be  an  ex- 
ceedingly inconvenient  one ;  it  left  each  party  too  much 

33  Ante^  p.  17. 

34  By  the  3  &  4  Win.  4,  c.  27,  s.  7,  it  is  enacted,  <<  Tbat  when  any 
person  shall  be  in  possession  or  in  receipt  of  the  profits  of  any  land, 
or  in  receipt  of  any  rent  as  tenant  at  will,  the  right  of  the  person 
entitled  subject  thereto,  or  of  the  person  through  whom  he  claims, 
to  make  an  entry  or  distress,  or  bring  an  action  to  recover  such  land 
or  rent,  shall  be  deemed  to  have  first  accrued  either  at  the  determina- 
tion of  such  tenancy,  or  at  the  expiration  of  one  year  next  after  the 
commencement  of  such  tenancy,  at  which  time  such  tenancy  shall  be 
deemed  to  have  determined ;  provided  always  that  no  mortgagor  or 
cestui  que  (rust  shall  be  deemed  to  be  a  tenant  at  will  within  the 
meaning  of  this  clause  to  his  mortgagee  or  trustee."  See  as  to  the 
construction  of  this  section.  Doe  d.  Bennett  v.  Turner,  7  M.  &  W. 
226,*  9  M.  &  W.  643  ;*  Doe  d.  Stanway  v.  Bock,  4  M.  &  Gr.  30, 
(43  E.  C.  L.  B.  25,) ;  Doe  d.  Evans  v.  Page,  5  Q.  B.  767,  (48  E. 
C.  L.  B.  765,) ;  Doe  d.  Angell  v.  Angell,  9  Q.  B.  328,  (58  E.  C.  L. 
R.  328,);  Doe  d.  Dayman  v.  Moore,  ib.  555,  (58  E.  C.  L.  B.  554,)  ; 
Doe  d.  Goody  v .  Carter,  ib.  863,  (58  E.  C.  L.  B.  862,) ;  Doe  d. 
Birmingham  Canal  Co.  v.  Bold,  11  Q.  B.  127,  (63  E.  C.  L.  B.  127,); 
Randall  v.  Stevens,  2  E.  &  B.  611,  (75  E.  C.  L.  B.  641,)  ;  the 
notes  to  Nepean  v.  Doe,  2  Smith's  L.  C.  406;  and  pos^,  Lect.  VIII., 
where  these  cases  are  referred  to  more  fully. 


54  LANDLOEDAND    TENANT. 

at  the  mercy  of  the  other.  It  is  true  that  there  was  a 
doctrine  in  the  law  called  that  of  Emhlements^^  under 
which  the  tenant  at  will  was  entitled  to  ingress  and 
regress,  for  the  purpose  of  reaping  and  carrying  his 
crop,  if  the  landlord  determined  the  tenancy  after  seed- 
time and  before  harvest.  But  this,  though  it  prcAented 
one  extreme  case  of  injustice,  by  no  means  obviated  the 
r*.9-|  -|  *entirety  of  the  inconveniences  residting  from 
this  sort  of  tenancy.  The  judges  of  the  Courts 
of  law,  perceiving  this,  seized  upon  every  opportunity 
within  their  power  to  prevent  a  strict  tenancy  at  will 
from  arising;  and  in  order  to  do  so,  they  laid  hold 
upon  any  circumstances  in  the  case  which  could  be 
construed  as  indicative  of  an  intention  of  the  parties 
that  the  tenancy  should  not  be  one  purely  at  will,  but 
should  continue  till  a  reasonable  notice  from  either  the 
landlord  or  the  tenant  that  it  was  his  election  to  deter- 
mine it.  Not  that  the  tenancy  became,  even  so,  one  for 
a  term  of  years ;  for,  as  it  was  entirely  optional,  entirely 
at  the  will  of  each  party,  whether  and  when  he  would 
give  notice,  the  tenancy  continued  for  some  time  to  be 
and  to  be  called  a  tenancy  at  will ;  differing  from  other 
tenancies  at  will  in  this  respect,  that  reasonable  notice 
of  the  determination  of  the  will  was  requisite  to  put  an 

^^  The  right  to  emhlemenfs,  or  the  right  to  take,  after  the  end  of 
the  tenancy,  crops  sown  before  its  determination  is  not  confined  to 
tenancies  at  will,  but  exists  also  in  the  case  of  other  tenures  of  an 
uncertain  character.  Emblements  are  allowed  in  order  to  encourage 
the  cultivation  of  the  land,  and  because,  where  the  tenancy  is  not 
determined  by  any  act  of  the  tenant,  it  would  be  obviously  unjust  to 
deprive  him  of  the  benefit  of  a  crop  which  he  sowed  at  a  time  when 
he  might  reasonably  expect  to  reap  it.  Co.  Litt.  55  b;  2  Black. 
Comm.  146.  The  old  law  with  respect  to  emblements  has  been 
altered  by  statute  where  the  tenancy  is  determined  by  the  death  of  a 
landlord  who  is  entitled  for  his  life,  or  for  any  other  uncertain  inte- 
rest.    See  the  14  &  15  Vie.  c.  25 ;  and  post,  Lect.  IX. 


TENANCY  FROM  YEAR  TO  YEAR.     55 

end  to  it.(a)  What  was  a  reasonable  time  for  this 
purpose  was  at  first  not  quite  ascertained ;  it  is,  how- 
ever, now  well  settled  that  in  all  cases  of  yearly  tenan- 
cies, it  is  Jialf  a  years  notice  expiring  at  that  period  of 
the  year  at  tohich  the  tenancy  commenced.  DoetZ.  Martin 
V.  Watts,  7  T.  R  85  ;  Doe  d.  Shore  v.  Porter,  3  T.  R 
jg  36  Yhe  circumstance  from  which  the  presumption 
usually  was  derived  that  the  parties  intended  to  create 
a  yearly  tenancy,  rather  than  one  strictly  at  will,  was 
the  payment  of  a  yearly  rent ;  and  accordingly  it  is 
now  settled,  that  if  a  party  enter  into  or  remain  in  pos- 
session *under  circumstances  which  would  con-  r^oQ-i 
stitute  him  a  tenant  at  will,  the  payment  of  a 
yearly  rent  or  settlement  of  it  in  account  with  his  land- 
lord, renders  him  tenant  from  year  to  year,  and  entitles 
him  to  half  a  year's  notice  to  quit.  Thus,  in  Doe  d. 
Martin  v.  Watts,  7  T,  R.  85,  where  the  tenant  entered 
under  a  lease  which  purported  to  be  made  in  pursu- 
ance of  a  power,  but  which  was  not  warranted  by  the 
power  and  therefore  did  not  bind,  it  was  held  that  the 
reversioner,  having  received  rent,  had  constituted  him 
his  tenant  from  year  to  year.^^     And  even  the  admis- 

3^  See  as  to  notices  to  quit,  post,  Lect.  VIIL 

37  See  Doe  d.  Tucker  v.  Morse,  1  B.  &  Ad.  365,  (20  E.  C.  L.  K. 
519.  In  this  case  the  defendant  had  entered  into  possession  of  the 
premises  in  question  under  a  lease  from  a  tenant  for  life  of  the 
property,  and  the  plaintiff  was  the  remainder-man  who  had  succeeded 
the  tenant  for  life.  The  lease  had  been  made  under  a  power,  but  its 
validity  was  doubtful.  The  rent  was  to  be  paid  partly  in  money, 
partly  in  culm,  which  was  to  be  carried  by  the  tenant  to  the  land- 
lord's house.  After  the  death  of  the  tenant  for  life,  and  after  the 
plaintiff  had  come  into  possession,  he  sent  one  of  his  servants  to  get 

(a)  This  is  the  tenancy  held  to  be  established  in  Massachusetts  by 
all  parol  leases,  whether  for  a  certain  or  uncertain  time,  and  whether 
an  annual  rent  be  reserved,  or  not ;  Ellis  v.  Paige,  1  Pick.  43. 


56  LANDLORD    AND    TENANT. 

r*oq-i    sion  that  an  account  charging  the  tenant  with 
half  a  year's  rent  was  correct,  has  been  held  to 
warrant  the  imphcation  of  a  tenancy  from  year  to  year. 
Cox  V.  Bent,  5  Bing.  185 ;  (15  E.  C.  L.  R  533.)'' 

carts  to  bring  home  the  culm.  The  servant  went  to  the  defendant, 
and  also  to  other  tenants.  On  this  occasion,  and  also  at  a  con- 
siderably later  time,  culm  was  carried  by  the  defendant  to  the  plain- 
tiff's house,  and  there  received.  The  jury  found  that  the  culm  was 
carried  by  and  received  from  the  defendant  in  the  way  of  rent  under 
the  reservation.  The  Court  held  that  this  finding  was  warranted  by 
the  evidence,  and  that,  assuming  that  the  lease  was  void,  the  receipt 
of  the  culm  under  these  circumstances  was  a  recognition  of  the 
defendant  as  tenant  from  year  to  year.  See  also  Berrey  v.  Lindley, 
3  M.  &  Gr.  498,  (42  E.  C.  L.  R.  263,).  In  that  case  a  person  had 
entered  upon  premises  under  an  agreement  for  a  term  of  five  years 
and  a  half.  The  agreement  was  invalid  under  the  Statute  of  Frauds ; 
but  rent  having  been  paid  it  was  held  that  a  yearly  tenancy  had 
arisen.  In  Lee  v.  Smith,  9  Exch.  662,*  a  tenant  entered  into  the 
possession  of  premises  under  an  agreement  in  writing,  which  stipu- 
lated for  a  longer  term  than  three  years,  but  which,  not  being 
under  seal,  was  void  as  a  lease  under  the  8  &  9  Vic.  c.  106.  The 
rent  was  to  be  paid  quarterly,  and  in  advance.  The  tenant  paid  rent 
on  several  occasions ;  and  the  receipts  stated  that  the  payments  were 
made  in  advance.  The  Court  held  that,  although  the  agreement  was 
void,  there  was  sufiBcient  evidence  of  the  rent  being  payable  quarterly 
in  advance.  «  Although  the  agreement  was  void,"  said  Baron  Parke, 
"  as  not  being  under  seal  as  required  by  the  8  &  9  Vic.  c.  106, 
there  was  ample  evidence  that  the  party  in  question  consented  to  be 
tenant  from  year  to  year  upon  the  terms  that  the  rent  should  be 
payable  at  the  beginning  instead  of  the  end  of  each  quarter."  The 
presumption  which  arises  in  these  cases  from  the  payment  and 
acceptance  of  rent  is  the  same  against  a  corporation  as  against  an 
ordinary  person.  Doe  d.  Pennington  v.  Taniere,  12  Q.  B.  998,  (64 
E.  C.  L.  R.  998.)  The  cases  in  which  a  yearly  tenancy  has  been 
held  to  arise  upon  a  holding  over,  are  referred  to  more  fully,  j^ost, 
Lect.  VIII. 

38  See  also  Bishop  v.  Howard,  2  B.  &  C.  100,  (9  E.  C.  L.  R.  52,); 
Doe  d.  Rogers  v.  Pullen,  2  Bing.  N.  C.  749,  (29  E.  C.  L.  R.  745,) ; 


TENANCY  FROM  YEAR  TO  YEAR.     57 

Before  quitting  the  subject  of  yearly  tenancy,  it  is 
right  to  remark  that  it  differs  from  a  tenancy  at  will  in 

Chapman  v.  Towner,  6  M.  &  W.  100  3*  Riseley  v.  Ryle,  11  M.  & 
W.  16  ;*  Doe  d.  Thompson  v.  Amey,  12  A.  &  E.  476,  (40  E.  C. 
L.  R.  289,) ;  Mayor  of  Thetford  v.  Tyler,  8  Q.  B.  95,  (55  E.  C.  L. 
R.  93,) ;  In  re  Stroud,  8  C.  B.  502,  (65  E.  C.  L.  R.  500,) ;  and 
Doe  d.  Prior  v.  Ongley,  10  C  B.  25,  (70  E.  C.  L.  R.  25,).  But 
the  payment  of  rent  must,  in  order  to  have  the  effect  of  enlarging 
the  tenancy  at  will  into  a  tenancy  from  year  to  year,  be  made  with 
reference  to  a  yearly  holding.  Therefore,  where  a  person  paid  rent 
under  an  agreement  for  the  occupation  of  a  piece  of  land,  which  did 
not  specify  any  time  during  which  the  occupation  was  to  last,  and 
the  rent  was  not  paid  with  reference  to  a  year,  or  to  any  aliquot  part 
of  a  year,  it  was  held  that  the  tenancy  was  a  tenancy  at  will  only. 
See  Richardson  v.  Langridge,  4  Taunt.  128;  the  judgment  of  Baron 
Parke,  in  Braythwayte  v.  Hitchcock,  10  M.  &  W.  497  ;*  and  Doe  d. 
Hull  V.  Wood,  14  M.  &  W.  682.*  Indeed,  there  is  no  doubt  that  a 
tenancy  at  will  may  exist,  if  this  appears  to  be  the  intention  of  the 
parties,  notwithstanding  the  reservation  of  a  yearly  rent.  Doe  d. 
Bastow  V.  Cox,  11  Q.  B.  122,  (63  E.  C.  L.  R.  121,) ;  Doe  d.  Dixie 
V.  Davies,  7  Exch.  89.*  («)  And  although  a  tenancy  from  year  to 
year  is  ordinarily  implied  from  the  mere  receipt  of  rent,  it  is  clear 
that  it  is  open  to  the  party  who  receives  the  rent  to  rebut  this  pre- 
sumption' by  explaining  the  circumstances  under  which  it  was 
received ;  as,  for  instance,  by  showing  that  it  was  received  in 
ignorance  of  the  death  of  the  person  upon  whose  life  the  premises 
were  held.  Doe  d.  Lord  v.  Crago,  6  C.  B.  90,  (60  E.  C.  L.  R.  89,). 
In  this  case,  the  rule  was  laid  down  by  the  Lord  Chief  Justice  Wilde, 
in  delivering  the  judgment  of  the  Court,  in  the  following  terms': — 
"  It  is  clear,  that  upon  proof  of  the  payment  of  rent  in  respect  of  the 
occupation  of  premises  ordinarily  let  from  year  to  year,  the  law  will 
imply  that  the  party  making  such  payments  holds  under  a  tenancy 
from  year  to  year,  .  .  .  But  it  is  equally  clear  that  it  is  compe- 
tent to  cither  the  receiver  or  payer  of  such  rent  to  prove  the  circum- 
stances under  which  the  payments  as  for  rent  were  so  made,  and  by 
such  circumstances  to  repel  the  legal  implication  which  would  result 

(fi)  Sullivan  v.  Enders,  3  Dana,  66. 


58  LANDLORD    AND    TENANT. 

the  material  particular  of  being  assignable  and  capable 
of  supporting  an  under  lease  by  the  yearly  tenant; 
whereas  a  tenancy  at  will,  strictly  so  called,  is  put  an 
r*94."i  ^^^  ^^  ^y  ^^^  attempt  on  the  *part  of  the  tenant 
either  to  assign  or  underlet.^^  It  sometimes 
happens  that  a  house  is  taken  under  circumstances  from 
which  a  yearly  tenancy  cannot  be  inferred,  though  a 
monthly  or  a  weekly  one  may  be  so;  and  in  those 
cases,  a  month's  or  a  week's  notice  to  quit  is  sufficient, 
for  the  notice  has  reference  in  all  cases  to  the  letting. 
Doe  d.  Parry  v.  Hazell,  1  Esp.  94 ;  Doe  d.  Peacock  v. 
Raffan,  6  Esp.  4.^*^ 

from  the  receipt  of  rent,  unexplained."  And  a  jury  may  take  into 
consideration  the  surrounding  circumstances  in  considering  whether 
payments  which  have  been  made  by  persons  in  the  occupation  of 
premises  were  or  were  not  made  under  an  actual  or  supposed  contract 
of  tenancy.  Woodbridge  Union  v.  Colneis,  13  Q.  B.  269,  (66  E.  C. 
L.  R.  267,). 

^^  That  is  to  say,  if  notice  of  the  assignment  is  given  to  the  lessor. 
Ante,  p.  17,  note  ^^.  We  have  also  seen  that  he  may  underlet  at 
will.     Ante,  p.  17,  note  ^^. 

'^°  Although  the  notice  has  usually  reference  to  the  letting,  and 
where  there  is  no  express  agreement  in  this  respect,  the  law  implies 
that  certain  notices  are  to  be  given  upon  certain  lettings;  the  length 
of  the  notice  does  not  necessarily/  depend  upon  whether  the  tenancy  is 
a  yearly,  monthly,  or  weekly  one.  It  is  regulated  by  the  express  or 
implied  agreement  between  the  parties  in  this  respect.  In  ordinary 
yearly  tenancies,  the  law  implies,  in  the  absence  of  any  express 
stipulation  upon  the  subject,  that  the  notice  is  to  be  a  six  months' 
notice;  but,  a  tenancy  may  be  yearly  or  monthly,  that  is  to  say,  it 
may  be  determinable  only  at  the  expiration  of  a  year,  or  of  a  month, 
or  of  successive  years  or  months  after  its  commencement,  and  yet  it 
may  be  determinable  at  those  periods  by  a  shorter  or  longer  notice 
than  a  half  year's  notice,  or  by  a  notice  having  no  precise  relation,  in 
point  of  time,  to  a  month.  Thus,  in  Doe  d.  Peacock  v.  RaflFan,  cited 
in  the  text,  the  letting  was  for  a  year,  the  rent  was  reserved  weekly, 
and  the  notice  required  by  the  contract,  was  a  four  week's  notice. 


TENANCY     BY     SUFFERANCE.  59 

*It  remains  to  state  the  nature  of  a  tenancy  hy  |-#9g-| 
sufferance.  A  tenant  hy  sufferance  is  defined  by 
Lord  Coke,  (1  Inst.  57  b),  to  be  one  wlio  comes  in  hy 
right  and  holds  over  tvithout  right}^  Thus,  if  a  tenant 
pur  auter  vie  continue  in  possession  after  the  death  of 
the  person  for  whose  hfe  he  held,  he  becomes  tenant  hy 
sufferance  ;  so  an  under-tenant  who  remains  in  posses- 
sion after  the  expiration  of  the  original  *lease,  r*9g-i 
out  of  which  the  under-lease  to  him  was  de- 
rived. Simpkin  v.  Ashurst,  4  Tyrwh.  781,  [S.  C.  1  Cr. 
M.  &  R.  261.]  This  tenancy  is  the  very  lowest  known 
to  the  law.  (a)  It  cannot  be  conveyed,  it  cannot  be 
enlarged  by  a  release,  in  fact,  it  is  a  mere  invention 
of  the  law  to   prevent    the  continuance  of  the   pos- 

And  in  Doe  d.  Pitcher  v.  Donovan,  1  Taunt.  555,  the  letting  was 
from  year  to  year,  and  the  contract  pi'ovided  that  a  quarter's  notice 
should  be  given.  See  also  Doe  d.  Chadborn  v.  Green,  9  A.  &  E. 
658,  (36  E.  C.  L.  R.  233,);  Reg.  v.  Cbawton,  1  Q.  B.  247,  (41  E. 
C.  L.  R.  523,) ;  the  observations  of  Baron  Parke  in  HufFell  v.  Armi- 
stead,  7  C.  &  P.  57,  (32  E.  C.  L.  R.  497,) ;  and  Towne  v.  Campbell, 
3  C.  B.  921,  (54  E.  C.  L.  R.  920,).  In  the  same  manner  the 
periods  at  which  the  rent  is  reserved  have  no  necessary  relation  to 
the  duration  of  the  holding,  or  to  the  length  of  the  notice  to  quit. 
See  the  cases  cited  above,  Doe  d.  Bastow  v.  Cox,  11  Q.  B.  122,  (63 
E.  C.  L.  R.  121,) ;  and  Doe  d.  Dixie  -v.  Davies,  7  Exch.  89.* 

^^  See  Com.  Dig.  Estates  hy  grant  (1) ;  Watkins  on  Convey,  pp. 
23-28,  9th  edit.  There  can  be  no  tenancy  at  sufferance  against  the 
crown;  for  if  the  king's  tenant  holds  over,  he  is  an  intruder.  See 
Co.  Litt.  57  b ;  and  the  judgment  in  Doe  d.  Watt  v.  Morris,  2  Bing. 
N.  C.  196,  (29  E.  C.  L.  R.  495,). 

(a)  Any  one  who  continues  in  possession  without  agreement,  after 
the  termination  of  a  particular  estate,  is  a  tenant  at  sufferance.  Liv- 
ingston V.  Tanner,  12  Barb.  481  ;  and  by  the  revised  statutes  of  New 
York  one  month's  notice  in  writing  is  necessary  before  ejectment  can 
be  broujiht  for  his  removal. 


60  LANDLORD    AND    TENAJSTT. 

session  from  operating  as  a  trespass.*^  You  will 
observe  also  that,  unlike  a  tenancy  for  years^  which 
always  arises  from  contract,  and  a  tenancy  at  will., 
which  may  arise  either  from  express  contract  or  by 
implication,  this  sort  of  tenancy  never  can  arise  by 
contract,  either  express  or  implied,  for,  if  the  owner  of 
the  land  were  to  assent  to  it,  it  would  become  a  tenancy 
at  will,  by  means  of  that  very  assent.  The  truth  is, 
that  it  was  probably  invented  for  the  purpose  of  ]3re- 
venting  adverse  possession  from  taking  place,  when  a 
particular  estate  determined  without  the  knowledge  of 
the  reversioner.  For  instance,  if  A.  had  couA-eyed  land 
to  B.  to  hold  during  the  life  of  C,  C.  might  have  died 
without  A.'s  knowledge,  and  then  had  B.'s  continuance 
in  possession  been  held  tortious,  the  Statute  of  James 
the  1st  would  have  begun  to  run,  and  at  the  end  of 
twenty  years  A.  Avould  have  been  barred.  This  was 
prevented  by  considering  B.  tenant  on  sufferance. 
r*271  ^^^^'  liowever,  the  Statute  of  3  &  4  W.  4,  c.  *27, 
having,  to  use  the  words  of  the  Court  in  Xepean 
V.  Doe,  2  M.  &  AV.  910,*^^  done  away  with  the  doctrine 
of  non-advei'se  2)ossession,  the  principal  object  attained 
by  raising  a  tenancy  at  sufferance,  is  now  at  an  end,  and 
we  shall  probably  hear  but  little  for  the  future  of  that 
sort  of  tenancy. 

I  have  thus,  as  an  introduction  to  the  subject  on 
which  we  are  engaged,  enumerated  the  various  sorts  of 
tenancy  known  to  the  law,  and  endeavored,  briefly,  to 

"^^  This  appears  to  be  the  true  description  of  a  relation  which  is 
called  a  tenancy,  but  which  is  directly  opposed  to  the  ordinary 
definition  of  a  tenancy,  since  it  is  necessary,  in  order  that  it  should 
exist,  that  there  should  be  no  contract,  either  express  or  implied, 
between  the  so  called  landlord  and  tenant. 

^3  See  the  notes  to  Nepean  v.  Doe,  and  Taylor  v.  Horde,  2  Smith's 
L.  C  396;  andjjos^,  Lect.  Vlil. 


POINTS    RELATING    TO    TENANCIES. 


61 


point  out  the  general  nature  of  each  of  them.  In  the 
remaining  Lectures,  however,  it  is  my  intention,  as  I 
stated  at  the  commencement  of  this  Lecture,  to  con- 
sider them  more  in  detail,  and,  in  doing  so,  to  confine 
my  observations  chiefly,  if  not  altogether,  to  those 
which  fall  within  the  denomination  oi  chattel  interests. 


*LECTURE    II. 


[*28] 


Points   relating  to    Crkation 
OF  Tenancy 30 

Who  may  be  Lessors 31 

Tenants  in  Tail 32 

Enabling  Statute 33 

Requisites   of  Leases  under 
Fines  and  Recoveries  Act.   33 

Tenants  for  Life 36 

Ecclesiastical  Persons 37 

Enabling  Statute 37 

Disabling  Statutes 37 

Husbands  leasingWife's  Land  40 
Persons  acting  under  Powers  42 

Statute  of  Uses 42 

Effect  of  Leases  under  Powers  44 

Guardians  in  Socage 46 

Testamentary  Guardians 46 


Executors    and   Administra- 
tors   , . .   46 

Persons  Non  Compos 47 

Married  Women 47 

Infants 48 

Leases  by,  voidable  only 48 

Joint  Tenants  and  tenants  in 

Common 49 

Parish  Officers 50 

Who  may  be  Lessees 52 

Infants 53 

Married  Women 55 

Aliens 56 

Denizens 56 

What  may  be  Leased 57 

Things  which  lie  in  Grant 58 

Things  which  lie  in  Livery 58 


In  the  last  Lecture,  I  enumerated  the  various  sorts 
of  tenancies  known  to  the  law.  I  now  proceed  to  the 
consideration  of  their  incidents,  confining  myslf,  as  I 
premised  I  would  do,  to  such  as  are  of  an  inferior  de- 
gree to  freehold.  I  mean  to  terms  of  years,  and  tenancies 
from  year  to  year ;  for  with  regard  to  tenancies  strictly  at 
will,  and  tenancies  at  sufferance,  they  are  interests  of  so 
little  practical  importance,  that  I  shall  probably  have 


62  LANDLORD    AND    TENANT. 

r*'>Qi  nothing  farther  to  say  concerning  *either  of 
them.  A  tenancy  on  sufferance,  being  the  mere 
continuance  oi possession  after  the  rigid  has  determined, 
and  hable  to  be  destroyed  either  by  the  assent  of  the 
landlord,  which  woidd  convert  it  into  a  tenancy  at  will, 
or  by  his  dissent^  which  would  render  it  a  tortious  hold- 
ing, and  being,  therefore,  from  its  very  nature,  in- 
capable of  being  accompanied  by  a  reservation  of  rent, 
or  by  agreements  of  any  description  whatever, — such  a 
tenancy,  cannot,  it  is  obvious,  involve  many  points  or 
subjects  of  discussion.^  And  with  regard  to  tenancies 
strictly  at  will,  although  we  sometimes  find  them  in 
existence  pending  some  other  contract  between  the 
parties,  as,  for  instance,  where  a  vendee  is  let  into  pos- 
session before  the  execution  of  the  conveyance,  or  a 
lessee  under  an  agreement  for  a  lease,  but  before  it  is 
executed ;  yet  in  these  cases  the  tenancy  at  will  exists 
merely  for  a  short  time,  and  merely  as  the  consequence 
of  a  delay  in  completing  some  other  contract,  such,  for 
instance,  as  that  of  sale  or  of  demise.  A  tenancy  at  vdVi. 
created  by  express  words  is  a  thing  almost  unknown  in 
practice ;  and  it  is  no  wonder  that  it  should  be  so,  since 
we  have  seen  that  the  commonest  of  all  stipulations, 
that  for  rent,  has  the  effect  of  turning  it  into  a  tenancy 
of  another  description.^  I  shall  therefore  probably 
have  very  little  or  nothing  more  to  say  of  tenancies 
i-^oA-|  *on  sufferance  and  at  will  strictly  so  called. 
And  our  attention  in  the  remainder  of  these 

^  Ante,  Lect.  I. 

2  The  mere  reservation  of  a  rent  will  not,  as  we  have  seen  [ante, 
Lect.  I.  p.  23,  note  ^^),  prevent  a  tenancy  from  being  at  will,  if  it 
appears  clearly  from  the  agreement  that  it  is  the  intention  of  the 
parties  that  it  should  be  of  this  description.  A  tenancy  at  will,  with 
a  rent  reserved,  occurs,  however,  very  seldom  in  practice. 


POINTS    RELATING    TO    TENANCIES.         68 

Lectures  will  be  directed  to  the  incidents  of  tenancies 
for  terms  of  years,  and  those  from  year  to  year. 

Now,  in  considering  these,  the  best  and  simplest 
method  will,  I  think,  be  to  divide  the  entire  subject 
into  four  heads. 

To  consider: — 

Firsts  those  points  which  occur  at  the  creation  of  the 
tenancy ; 

Secondly,  those  which  occwT during  the  tenancy  ; 

Thirdly,  those  which  occur  at  the  determination  of 
the  tenancy; 

And  FourtJdy,  as  the  parties  to  the  relation  are 
sometimes  changed  by  the  introduction  which  fre- 
quently takes  place  either  of  a  new  landlord,  or  a  new 
tenant,  whether  by  assignment  of  the  term,  or  assign- 
ment of  the  reversion,  or  in  other  modes  to  which  it 
will  be  necessary  to  advert,  I  must  consider  in  the 
fourth  place  those  points  which  occur  upon  a  change 
either  of  the  landlord  or  the  tenant. 

In  pursuance  of  this  plan,  I  now  proceed  to  the  con- 
sideration of  the  first  of  the  above  heads,  namely,  to 
the  consideration  of  those  points  which  occur  at,  and 
relate  to,  the  creation  of  the  tenancy. 

*Now  this  again  subdivides  itself  into  four    r#q-|-i 
distinct  heads ;  for  all  points  which  occur  at  the 
creation  of  the  tenancy  relate  either — 

First,  to  the  jMvty  demising  ; 

Or  secondly,  to  the  ixirty  to  whom  the  demise  is  made  ; 

Or  thirdly,  to  the  thing  demised  ; 

Or  fourthly,  to  the  mode  of  demise.    , 

We  will  therefore  consider  these  four  heads  in  order. 

First,  then,  with  regard  to  the  person  demising. 

It  is  obvious  that  the  ability  of  the  party  demising 
to  make  the  lease  must,  in  the  great  majority  of  cases, 
depend  on  the  extent  of  his  own  interest,  and  it  is 


64  LANDLORD    AND    TEN  AXT. 

equally  obvious  that,  as  far  as  his  o'wn  interest  extends, 
he  has  a  right  to  demise.  Thus  tenant  in  fee  simple 
may  demise  for  any  term  whatever,^  tenant  in  tail  may 
make  a  lease  which  will  be  unimpeachable,  at  all 
events  during  his  own  life,'^  and  in  like  manner  the 
owners  of  inferior  interests  may  make  demises  which 
will  be  unimpeachable  as  long  as  those  interests 
r**^9'l  ^continue.  So  far  the  matter  is  quite  plain  and 
obvious  ;  but  there  are  likewise  certain  cases  in 
which  persons  are  empowered  to  make  leases  exceeding 
in  duration  the  extent  of  their  own  interests,  and  even 
some  cases  in  which  persons  possessing  no  estate  at  all, 
are  nevertheless  able  to  demise.^     And  to  the  principal 

^  Com.  Dig.  Estates  hy  grant,  ((x.  2). 

*  The  passage  in  the  text  relates  to  the  right  of  tenants  in  tail  to 
grant  leases  at  common  law  independently  of  any  statute.  These 
leases  were  valid  during  the  life  of  the  lessor,  and  voidable  only  as 
against  the  issue  in  tail ;  but  they  were  void  as  against  the  remain- 
der-men or  reversioners.  Com.  Dig.  Estates  hy  yrant,  (Gr.  2)  ;  Bac. 
Ab.  Leases,  (D)  ;  Cruise's  Dig.  tit.  XXXII.  c.  v.  s.  71 ;  Doe  d. 
Phillips  V.  Rollings,  4  C.  B.  188,  (56  E.  C.  L.  R.  188,).  As  to 
the  affirmance  of  leases  by  the  acceptance  of  rent  by  the  issue  in  tail, 
see  Pennant's  Case,  3  Eep.  64  (4th  Resolution). 

*  As,  for  instance,  where  leases  are  made  under  powers.  There  is 
also  an  apparent  exception  to  the  rule,  that  the  power  of  leasing  is 
limited  by  the  lessor's  interest  in  the  land  in  the  case  of  leases  which 
are  valid  by  estoppel.  If  a  lease  by  deed  is  made  by  a  person 
who  has  at  the  time  no  estate  whatever  in  the  land,  and  this  fact 
does  not  appear  by  the  deed,  the  lease  takes  effect  immediately  by 
estoppel ;  that  is  to  say,  the  lessor  is  not  allowed,  during  the  con- 
tinuance of  the  lease,  to  aver  that  he  had  no  interest  in  the  land,  nor 
can  the  lessee,  if  he  has  executed  the  indenture,  dispute  the  lessor's 
title.  And  if  the  lessor  afterwards,  and  during  the  term,  acquires 
the  land  by  purchase  or  otherwise,  the  lease  takes  effect  in  interest. 
Co.  Litt.  47  b;  Bac.  Ab.  Leases,  (0) ;  2  ^Yms.  Saund.  418,  note  (1); 
Trevivian  v.  Lawrance,  1  Salk.  276  ;  Bayley  v.  Bradley,  5  C.  B.  396, 
(57  E.  C.  L.  R.  396,) ;  Sturgeon  v.  Wingfield,  15  M.  k  W.  224*. 


"WHO    MAYBE     LESSORS.  65 

of  these  cases  it  will  be  right,  wliile  we  are  upon  this 
part  of  the  subject,  shortly  to  advert. 

And  first — a  tenant  in  tail  could  not  originally  have 
made  any  lease  which  would  have  bound  his  issue  after 
his  decease,  for  they  claimed,  equally  with  himself, 
from  the  original  grantor,  and  paramount  to  any  estate 
or  incumbrance  created  by  *their  ancestor.  He  r*qq-i 
could,  indeed,  have  barred,  and  put  an  end  tq 
the  estate  tail,  and  then,  being  tenant  in  fee  simple, 
might  of  course  exercise  the  rights  of  one.  But  while 
he  remained  tenant  in  tail  he  could  not  have  bound  his 
issue  by  a  demise,  although  such  a  demise  was  not 
absolutely  void,  but  only  voidable,  so  that  if  the  issue 
had  received  rent  after  his  death,  it  would  ha\;e  been 
set  up  and  have  become  indefeasible.*'  Such  was  the 
situation  of  tenant  in  tail  and  his  lessee,  but  by  stat. 
32  Hen.  VIII.  c.  28  [a.  d.  1540,]  called  the  EnaUing 
Statute^  his  powers  were  enlarged,  and  he  was  enabled 
to  make  leases  binding  on  the  issue  in  tail,  but  not 
binding  on  the  remainder-man  or  reversioner;  but  this 
power  was  given  to  him,  subject  to  certain  conditions, 
namely;  1st,  that  the  lease  should  be  by  indenture,  not 
by  deed  poll,'  which  was  required  in  order  that  the 

The  operation  of  a  feoffment  to  pass  a  freehold  from  a  person  who 
had  no  freehold  in  the  land,  was  also  an  exception  to  the  general 
rule.  In  these  and  the  like  cases  ''  a  man  might,"  as  has  been  quaintly 
said,  "  have  a  lawful  freehold  from  a  person  who  had  nothing  in  the 
land,  as  a  man  may  have  fire  from  a  flint  which  has  no  fire  in  it." 
See  the  observation  of  Babyngton  J.  (9  Hen.  6,  2-i  b),  cited  in  Taylor 
d.  Atkins  v.  Horde,  1  Burr.  00.  Now,  however,  feoffments  have  no 
tortious  operation.     8  &  9  Vic.  c.  lOG,  s.  4. 

^  Bac.  Ab.  Leases,  (D) ;  see  also  the  authorities  cited,  ante,  p.  31, 
note  * ;  Machell  v.  Clarke,  2  Ld.  Raym.  778  ;  and  Doe  d.  Southouse 
V.  Jenkins,  5  Bing.  469,  (15  E.  C.  L.  R.  676,). 

'  32  Hen.  8,  c.  28,  s.  1 ;  Bac.  Ab.  Leases,  (E) ;  Com.  Dig.  Estates 
hy  grant,  (B.  32),  (G.  5).     The  statute  applies  only  to  leases   made 


66  LANDLORD    AND    TENANT. 

tenant  might  be  liable  to  actions  of  covenant  in  case  of 
his  committing  breaches  of  its  stipulations :  2nclly,  that 
it  should  begin  from  the  clay  on  Avhich  it  is  made,^ 
which  is  intended  to  prevent  its  termination  from  being 
postponed  to  a  very  distant  period ;  since,  otherwise,  a 
r*'^4-l  tsi^^^t  in  *tail  might  have  granted  a  lease  to 
begin  twenty  years  hence,  and  then,  if  he  had 
himself  died  about  that  period,  it  would  have  taken 
effect  almost  entirely  out  of  the  estate  of  the  issue : 
ordly,  that  any  other  lease  in  being  of  the  same  land 
should  be  surrendered  or  expired  within  a  year  of 
making  the  new  one  :^  since,  otherwise,  the  reversion 
immediately  expectant  on  the  interest  of  the  person  in 
possession  would  have  been  out  of  the  issue  in  tail  so 
long  as  the  two  leases  continued  concurrent :  4thly,  the 
lease  must  not  exceed  three  lives,  or  twenty-one  years  ;^^ 
since  it  was  thought  unjust  to  keep  the  issue  longer  out 
of  possession :  5thly,  the  lease  must  be  of  lands  which 
have  been  usually  let  for  twenty  years  before  the  lease 
made  :^^  6thly,  the  rent  accustomably  paid  during  that 
period  [or  a  greater  rent]  must  be  reserved  upon  it ; 
and — ^^ 

by  persons  of  the  full  age  of  twenty-one  years.     See  s.  1.     It  does 
not  apply  to  copyholds.     Rowden  v.  Malster,  Cro.  Car.  42. 

8  32  Hen.  8,  c.  28,  s.  2;  Bac.  Ab.  Leases,  (E). 

9  32  Hen.  8,  c.  28,  s.  1.  1°  Ih. 

"  lb.  A  lease  which  does  not  except  the  trees  is  not  good  under 
this  statute,  if  this  exception  has  been  made  in  the  former  leases. 
Smith  V.  Bole,  Cro.  Jac.  458;  and  the  judgment  in  Doe  d.  Douglass 
r.  Lock,  2  A.  &  E.  748,  (29  E  C.  L.  R.  344,).  It  was  doubtful 
whether,  under  this  act,  premises  which  had  been  usually  let  together 
could  be  let  in  separate  parts,  4  Cruise  Dig.  71.  But  see  now  the 
39  &  40  Geo.  3,  c.  41  ;  and  Doe  d.  Egremont  v.  Williams,  11  Q.  B. 
688,  (63  E.  C.  L.  R.  688,). 

^2  See  as  to  what  is  to  be  considered  to  be  the  ancient  rent  where 
various  rents  have  been  reserved.     Bac.  Ab.  Leases,  (E.). 


TTHO    M  A  TBE     LESSORS.  67 

Lastly,   it   must   not   be   without   impeachment   of 
waste/^ 

Such  are  the  provisions  by  which  the  Legislature  in 
the  time  of  Henry  VIII.  endeavored,  while  *they  j-^^  p^-. 
increased  the  power  of  tenant  in  tail,  to  protect 
the  interests  of  the  issue ;  and  on  this  statute  the  right 
of  tenant  in  tail  to  lease  Avould  at  this  day  depend, 
were  it  not  for  stat.  3  &  4  Wm.  IV.  c.  74,  for  the  aboli- 
tion of  Fines  and  Becoveries,  the  15th  section  of  which 
enacts  "  that  every  actual  tenant  in  tail,  ichether  in  pos- 
session, remainder,  contingency,  or  otherivise,  shall  have 
full  poiver  to  dispose  of  for  an  estate  in  fee-simple  absolute, 
OR  FOR  ANY  LESS  ESTATE,  tJie  lands  entailed,"  as  against 
the  issue  in  tail,  and  also  as  against  the  remainder-men 
or  reversioners}^  These  words  seem  large  enough  to 
give  tenant  in  tail  an  unlimited  power  of  leasing,  and 
possibly,  therefore,  it  may  at  first  sight  have  occurred 
to  you  that  they  reduce  the  statute  of  Henry  VIII.  to 
a  dead  letter.  But  this  is  not  so ;  for  the  41st  section 
of  the  Abolition  of  Fines  Act  provides,  that  every  assur- 
ance by  which  a  tenant  in  tail  shall  [under  that  act] 
effect  a  disposition  of  his  lands  shall  be  enrolled  in 
Chancery  within  six  calendar  months,  except  it  be  a 
lease  for  not  more  than  twenty-one  years  to  begin  from 
the  date  or  [from  any  time]  not  more  than  twelve 
months  from  the  date,  and  reserving  a  rack-rent  or  not 
less   than   five-sixths   of  one ;  so    that,   even   now,   if 

13  32  Hen.  8,  c.  28,  s.  2;  Bac.  Ab.  Leases,  (E.). 

1"*  This  act  did  not  come  into  operation,  for  the  purposes  mentioned 
in  the  text,  until  after  the  31st  December,  1833.  Its  general  pro- 
visions do  not  apply  to  Ireland.  See  s.  92.  The  4  &  5  Wm.  4,  c. 
92,  which  is  the  corresponding  act  for  Ireland,  is  substantially  the 
same  as  the  English  act,  with  the  exception  of  the  sections  which 
relate  to  lands  in  ancient  demesne  and  to  copjholds. 


G8  LANDLORD    AND    TENANT. 

r*'^n  *^  tenant  in  tail  make  a  lease  without  intending 
to  enrol  it,  he  must  proceed  either  under  that 
exception,  or  under  the  statute  9  Henry  VIII.,  which 
is  in  some  respects  more  beneficial,  since  it  enables 
him  to  make  a  lease  for  three  lives,  whereas  the  other 
gives  him  no  alternative  besides  twenty-one  years. 
The  statute  of  Henry  VIII.,  too,  only  requires  the 
accustomed  rent  to  be  reserved,  wliich  is,  in  many 
cases,  less  than  five-sixths  of  the  rack-rent. 

There  is  another  reason  which  renders  it  important 
to  bear  in  mind  the  provisions  of  the  statute  of  Henr}' 
VIII.,  namely,  that  they  apply,  as  you  mil  see  pre- 
sently, to  various  cases  besides  that  of  tenant  in  tail. 

Tenants  for  life  have,  generally  speaking,  no  peculiar 
powers,  except  such  as  are  granted  to  them  under  the 
express  provisions  of  some  deed  or  will,  to  the  nature 
of  which  I  will  in  a  few  moments  advert.^^  But  there 
is  one  class  of  tenants  for  life,  I  mean  Ecclesiastical 
Persons^  with  regard  to  whose  power  of  demising  pecu- 
liar rules  exist,  which  it  is  necessary  briefly  to  take 
notice  of. 

r*'^7l        *Ecclesiastical  Persons  might,  with  the  con- 
sent required  by  law,  have  made  leases  for  any 
period,  which  would  have  bound  their  successors  (Shep. 

^^  Mere  tenants  for  life  can  make  leases  for  their  own  lives  only. 
These  leases  determine  absolutely  upon  their  death,  and  cannot  be 
confirmed  by  the  remainder-men.  Bac.  Ab.  Leases,  (I.)  2 ;  Doe  d. 
Potter  V.  Archer,  1  B.  &  P.  531  ;  Doe  d.  Simpson  v.  Butcher,  1 
Dougl.  50.  But,  if  the  remainder-men  accept  rent,  this  may  be  evi- 
dence of  a  new  tenancy  from  year  to  year.  Doe  d.  Martin  v.  Watts, 
7  T.  R.  83.  Before  the  Statutes  of  Apportionment  (11  Geo.  2,  c. 
19,  and  4  &  5  Wm.  4,  c.  22),  if  a  tenant  for  life  died  on  or  before 
the  rent-day,  so  that  the  lease  determined  before  the  expiration  of 
the  day  on  which  the  rent  was  reserved,  no  rent  could  be  recovered 
either  by  his  representative  or  by  the  remainder-man.  In  the.?c  cases 
the  rent  is  now  recoverable.     See  post,  Lect.V. 


WHOMATBELESSORS.  69 

Touchst.  281):  thus  a  Bishop  might  have  leased  for  any 
period,  with  the  consent  of  the  Dean  and  Chapter,  a 
Parson  or  Vicar  with  that  of  the  Patron  and  Ordinary. 
But,  without  such  consent,  they  could  have  made  no 
leases  which  would  have  been  binding  upon  their  suc- 
cessors.^^ 

Such  being  the  state  of  things  at  common  law,  the 
first  statute  which  affected  it  was  the  Enabling  Statute 
of  32  Henry  VIII.,  c.  28,  already  mentioned,^^  and 
which  enabled  all  ecclesiastical  persons,  except  parsons 
AND  VICARS,  to  make,  even  without  the  consent  of  any 
other  person,  leases  for  the  same  term,  and  subject  to 
the  same  regulations  as  I  have  ah'eady  enumerated  in 
speaking  of  leases  by  tenants  in  tail.^^  Next  caixie  a 
number  of  Acts  called  the  Disabling  Statutes^  viz.,  the 
1st  EHz.  c.  19;  13  Eliz.  c.  10;  14  Eliz.  c.  11  &  14; 
18  Eliz.  c.  11;  43  Eliz.  c.  9,  and  1  Jac.  I.  c.  3 ;  the 
general  effect  of  which  is  to  restrain  ecclesiastical  per- 
sons from  making  leases,  *even  toith  the  consent  r^qo-i 
of  those  persons  whose  concurrence  was  required 
at  common  law,  for  more  than  twenty-one  years,  or 
three  lives,  reserving  the  ancient  rent,  except  in  the 
case  of  certain  houses  in  corporate  and  market  towns.^^ 

"  Bac.  Ab.  Leases,  (H.)  ;  Com.  Dig.  Estates  hy  grant,  (G.  5,)  ; 
Doe  d.  BramnniU  v.  Collinge,  7  C.  B.  939,  (62  E.  C.  L.  R.  939,). 

"  Ante,  p.  83. 

^*  Although  the  words  of  the  statute  seem  to  limit  the  power  of 
leasing  to  ecclesiastical  persons  seised  of  an  estate  in  fee-simple  iu 
right  of  their  churches,  it  has  been  held  to  apply  to  prebendaries, 
chancellors  of  cathedral  churches,  and  precentors,  as  they  are  not 
specially  excepted.  Watkinson  v.  Man,  Cro.  Eliz.  350  ;  Acton's 
case,  4  Leon.  51 ;  Bisco  v.  Holte,  1  Lev.  112.  It  has  been  doubted 
whether  a  perpetual  curate  is  within  the  act.  Reeves  v.  M'Gregor, 
9  A.  &  E.  576,  (36  E.  C.  L.  R.  201,). 

"  See,  as  to  these  statutes,  Chitty's  Statutes  (by  Welsby  and 
Beavan),  tit.  Leases.     Leases  which  are  not  made  in  conformity  with 


70  LANDLORD    AND    TENANT. 

Besides  these  Acts  the  statute  39  &  40  Geo.  III.  c.  41 , 
has  since  passed,  which  provides  for  the  amount  of  rent 
to  be  reserved,  where  property  is  demised  in  several 
portions,  which  had  once  been  demised  altogether. 
And  lastly,  the  statutes  of  6  &  7  Wm.  IV.  c.  20  &  64, 
confine  the  renewal  of  leases  and  the  granting  of  con- 
current leases  within  certain  limits."*^ 

the  disabling  acts  of  the  1  &  13  Eliz.  are  not  absolutely  void,  not- 
withstanding the  strong  expressions  used  in  these  statutes.  They  are 
good  as  against  the  lessor  during  his  life,  if  he  is  a  corporation  sole ; 
or  if  made  by  a  corporation  aggregate,  they  are  valid  so  long  as  the 
dean  or  other  head  of  the  corporation  remains.  Co.  Litt.  45  a ;  and 
see  Burn's  Eccl.  Law,  9th  edit.  tit.  Leases.  Where  a  dean  and 
chapter  made  a  lease  under  a  local  act,  but  not  in  compliance  with 
its  provisions,  and  afterwards  rent  was  received  under  it  from  time 
to  time  by  the  deans  and  chapter  for  the  time  being  and  distributed 
among  themselves,  it  was  held  that  the  lease,  if  voidable  only,  had 
been  made  good  as  against  the  parties  who  had  received  the  rent,  and 
that,  if  it  was  void,  a  demise  from  year  to  year  might,  under  these 
circumstances,  be  presumed  without  proof  of  any  instrument  under 
seal.  Doe  d.  Pennington  v.  Taniere,  12  Q.  B,  998,  (64  E.  C.  L. 
R.  998,). 

2°  See  also,  as  to  the  renewal  of  leases  by  ecclesiastical  persons, 
the  6  &  7  Wra.  4,  c.  20,  (explained  by  the  6  &  7  Wm.  4,  c.  64,)  ; 
the  5  &  6  Vie.  c.  27;  and  the  5  &  6  Vic.  c.  108.  The  5  &  6  Vic.  c. 
27,  was  passed  the  better  to  enable  the  incumbents  of  ecclesiastical 
benefices  to  lease  the  lands  of  their  benefices  on  farming  leases.  It 
empowers  the  incumbent  of  any  benefice  (with  the  consent  of  the 
patron  and  of  the  bishop  of  the  diocese  in  which  the  lands  are  locally 
situated,  and  with  the  consent  also  of  the  lord  of  the  manor,  if  the 
lands  are  copyhold  and  the  lease  cannot,  by  the  custom  of  the  manor, 
be  made  without  his  license,)  to  lease  by  deed  any  part  of  the  glebe 
or  other  lands  belonging  to  the  benefice  (with  or  without  the  farm- 
houses, cottages,  &c.,)  for  any  term  not  exceeding  fourteen  years,  to 
take  effect  in  possession,  reserving  the  best  and  most  improved  yearly 
rent,  without  any  fine  or  other  consideration  for  the  granting  of  the 
lease.  The  rent  must  be  payable  quarterly  to  the  incumbent  for  the 
time  being,  and  the  lessee  must  not  be  made  dispunishable  for  waste. 


WHOMAYBELESSORS.  71 

*I  have  adverted  to  these  statutes,  because  it    r^on-i 
is  quite  necessary  that  you  should  be  aware  that 

He  must  covenant  with  the  incumbent  and  his  successors  to  pay  the 
rent,  and  all  taxes  on  the  premises ;  not  to  assign  or  underlet  with- 
out the  consent  of  the  bishop,  patron  and  incumbent ;  to  cultivate 
the  lands  according  to  the  most  approved  system ;  and  to  repair  and 
to  insure  any  buildings  upon  the  land  demised.  Mines,  minerals,  tim- 
ber, and  underwood  must  be  reserved  out  of  the  demise ;  and  a  power 
of  re-entry,  specified  in  the  statute,  and  of  a  stringent  kind,  must  be 
inserted  in  the  lease.  The  term  may  be  twenty  years  if  the  lessee 
covenants  to  adopt  any  system  of  cultivation  more  expensive  than 
the  usual  course,  or  to  drain  or  subdivide,  or  to  embank  and  warp 
any  part  of  the  premises,  or  to  erect  buildings,  or  to  repair  in  a  more 
extensive  manner,  and  at  a  greater  expense  than  is  usually  required 
of  lessees  of  farms,  or  to  improve  the  premises  in  any  other  way  (see 
s.  1).  The  word  benefice  is  defined  by  the  act  to  include  every 
rectory,  vicarage,  perpetual  curacy,  donative,  endowed  public  chapel, 
parochial  chapelry,  and  district  chapelry,  the  incumbent  of  which  in 
right  thereof  is  a  corporation  sole  (s.  15).  No  lease  is  valid  under 
this  act  unless  the  parsonage-house,  and  all  offices,  gardens,  &c., 
(together  with  so  much  land  belonging  to  the  benefice  situated  most 
conveniently  for  actual  occupation  by  the  incumbent  as  amounts, 
with  the  site  of  the  house,  oflices,  gardens,  &c.,  to  at  least  ten  acres,) 
is  not  included  in  the  lease,  or  in  any  other  subsisting  lease.  This 
provision  does  not,  however,  apply  where  the  land  to  be  leased  is 
situated  five  miles  or  more  from  the  parsonage,  or  where  there  is  no 
parsonage,  from  the  church  (s.  2).  A  proper  survey  and  plan  of  the 
lands  must  be  made  before  any  lease  is  granted  (s.  3).  The  5  &  6 
Vic.  c.  108,  enables  ecclesiastical  corporations,  whether  aggregate  or 
sole  (except  any  college  or  corporation  of  vicars  choral,  priest 
vicars,  senior  vicars,  custos  and  vicars,  or  minor  canons,  and  ecclesi- 
astical hospitals  and  their  masters),  to  grant  under  certain  restrictions 
leases  for  the  purpose  of  building  and  improvements,  for  any  term 
not  exceeding  ninety-nine  years,  to  take  effect  in  possession  (see  s.  1). 
They  may  also  lease,  for  not  more  than  sixty  years,  running  water, 
way-leaves  and  water-leaves,  canals,  water  courses,  tram-roads,  rail- 
ways and  other  ways;  and  they  may  grant  mining  leases  of  any 
mines,  &c  belonging  to  the  corporation   (ss,  4  &  6).     This  statute 


72  LANDLORD    AND    TENAXT. 

r*4m  *^^^'^®  leases  by  Bishops  and  other  ecclesiastical 
corporations  stand  on  a  very  different  footing 
from  leases  by  private  individuals ;  and  I  have  adverted 
to  them,  very  briefly,  because  their  provisions  are  so 
minute  and  complex,  that,  had  I  dwelt  upon  them,  not 
only  would  a  great  deal  of  time  have  been  taken  up, 
but  you  would  have  found  it  impossible  to  carry  their 
provisions  away  in  your  recollection.  If  you  are  de- 
sirous of  becoming  thoroughly  acquainted  with  them, 
the  best  mode  will  be  to  peruse  some  of  the  late  cases 
decided  as  to  their  construction ;  for  instance.  Doe  d. 
Tennyson  v.  Lord  Yarborough,  1  Bing.  24 ;  (8  E.  C.  L. 
H.,  384;)  Doe  d.  Gates  v.  Somerville,  9  Dowl.  &  Ry- 
land,  100.  [S.  C,  6  B.  &  C,  126  ;  13  E.  C.  L.  R,  68.] 
Vivian  v.  Blomberg,  3  Bing.  X.  C,  311 ;  (32  E.  C.  L. 
R.,  150;)  Doe  d.  Richardson  v.  Thomas,  1  P.  &  D., 
578.     [S.  C,  9  A.  &  E.,  556;  36  E.  C.  L.  R.,  201.]-^ 

The  husband  of  a  woman  seised  of  a  freehold 
r*41 1  *6state  in  real  property,  could,  at  common  law, 
have  made  a  binding  lease  of  it  for  the  joint 
lives  of  himself  and  wife ;  and  no  longer,  unless  indeed 
he  had,  after  her  death,  become  tenant  by  the  curtesy, 
and  even  then  it  would  at  all  events  have  ended  with 
his   own   life."^     The   enabling   statute  of  32  Henry 

regulates,  in  detail,  the  mode  in  which  these  leases  are  to  be  granted, 
and  renders  necessary  to  their  validity,  in  all  cases,  the  consent  of  the 
ecclesiastical  commissioners  (ss.  1 — 20).  When  the  lease  is  made  by 
the  incumbent  of  a  benefice  the  patron  must  also  consent;  and  where 
the  property  demised  is  copyhold,  and  the  lease  could  not  be  made 
without  a  license  from  the  lord,  his  consent  must  be  obtained  (s.  20). 
The  14  &  15  Vic.  c.  74,  regulates  the  granting  of  leases  of  lauds 
disappropriated  from  bishoprics  in  Ireland. 

21  See  also  Doe  d.  Brammall  v.  Collinge,  7  C.  B.  939,  (62  E.  C. 
L.  R.  939,). 

22  Shep.  Touchst.  280;  Roper's  Husb.  and   Wife,  c.  1,  s.  5,  c.  3. 
s.  1 ;  2  Wms.  Saund.  180,  note  (9). 


WHOMAYBELESSORS.  73 

VIII.,  sec.  3,  however,  applies  to  his  case,  and  enables 
him  to  make  leases  for  the  same  term,  and  subject  to  the 
same  conditions  that  have  been  already  enumerated.-^(a) 

23  Ante,  p.  33.  The  rent  should  be  reserved  to  the  husband  and 
wife,  and  the  heirs  of  the  wife.  Hill  v.  Saunders,  2  Bing.  112,  (9  E. 
C.  L.  R.  505,)  4  B.  &  C.  529,  (10  E.  C.  L.  R.  689,). 

(a)  The  third  section  of  the  Act  32  Henry  8th,  c.  28,  was  in  these 
words :  "  Provided  always,  That  the  wife  be  made  party  to  every 
such  lease  which  hereafter  shall  be  made  by  her  husband  of  any 
manors,  lands,  tenements  or  hereditaments,  being  the  inheritance  of 
the  wife ;  and  that  every  such  lease  be  made  by  indenture,  in  the 
name  of  the  husband  and  his  wife,  and  she  to  seal  the  same.  And 
that  the  term  and  rent  be  reserved  to  the  husband  and  to  the  wife, 
and  to  the  heirs  of  the  wife  according  to  her  estate  of  inheritance  in 
the  same.  And  that  the  husband  shall  not  in  anywise  alien,  dis- 
charge, grant,  or  give  away  the  same  rent  reserved,  nor  any  part 
thereof,  longer  than  during  the  coverture,  without  it  be  by  fine  levied 
by  the  said  husband  and  wife.  But  that  the  same  rent  shall  remain, 
descend,  revert,  or  come  after  the  death  of  such  husband,  unto  such 
person  or  persons,  and  their  heirs,  in  such  manner  and  sort  as  the 
lands  so  leased  should  have  done,  if  no  such  lease  had  been  thereof 
made." 

It  seems  to  have  been  held,  on  the  construction  of  this  statute,  that 
these  provisions  only  extend  to  leases  of  lands  which  the  husband 
holds  in  right  of  his  ivi/e,  but  that  where  he  holds  jointly  with  his 
wife,  his  single  demise  will  be  good  and  binding  on  the  wife.  Smith 
V  Trinder,  Cro.  Car.  22.  But  see  Bacon's  Abridgt.  Leases,  c.  2, 
where  it  is  said  this  case  was  never  decided. 

This  statute  created  the  single  exception  in  England  to  the  rule, 
that  the  interest  of  a  feme  covert  in  real  estate  could  be  devested  by 
fine  or  recovery  only. 

The  Statute  32  Henry  8th,  c.  28,  is  said  in  the  Report  of  the 
Judges,  3  Binn.  619,  to  be  in  force  in  Pennsylvania,  except  the  4th, 
5th  and  8th  sections  But  to  give  effect  to  such  a  lease  in  Pennsyl- 
vania, it  is  presumed  that  the  usual  separate  acknowledgment  of  the 
wife  would  be  necessary. 

In  New  York,  the  Statute  Henry  8th  has  not  been  adopted.     But 


74  LANDLORD    AND    TENANT. 

With  regard  to  any  chattel  interests  his  wife  might 
possess,  as  he  could  have  assigned  those  away  abso- 
lut'ely,  so  he  might  always  have  made  valid  leases  of 
them  for  any  term,  and  to  any  extent ;  for  cui  licet  quod 
est  majus^  el  etiam  quod  est  minus  Ucet.^^ 

The  persons  I  have  mentioned  hitherto,  are  persons 
who  possess  an  estate,  though  not  one  which  will 
necessarily  extend  to  the  termination  of  the  leases 
r*4-9"i  ^^l^ich  they  are  by  the  special  *pro visions  of  the 
legislature  empowered  to  grant.  There  are, 
however,  other  persons,  who,  having  themselves  no  in- 
terest at  all,  are  nevertheless  able  to  create  one.     It 

24  Co.  Litt.  46  b,  300  a,  351  a ;  Druce  v.  Denison,  6  Ves.  385  ; 
Wildman  v.  Wildraan,  9  Ves.  177.  If  the  husband  does  not  deal 
with  the  wife's  chattels  real,  they  belong  to  her  on  his  death  in  pre- 
ference to  his  personal  representative.  Anon.  Poph.  4 ;  Sjm's  Case, 
Cro.  Eliz.  33 ;  1  Piatt  on  Leases,  139.  And  although  the  wife 
makes  by  marriage  an  absolute  gift  to  the  husband  of  all  chattels 
personal  in  possession  in  her  own  right,  whether  he  survive  her  or 
not,  mere  choses  in  action  must  be  reduced  into  possession  by  the 
husband  during  his  lifetime,  or  they  will  survive  to  the  wife.  Co. 
Litt.  351  b ;  Fitzgerald  v.  Fitzgerald,  8  C.  B.  592,  (65  E.  C  L. 
R.  592,). 

it  is  not  necessary  in  New  York  to  have  recourse  to  fine  and  recovery, 
in  order  to  pass  the  estate  of  a  feme  covert.  She  may,  during  cover- 
ture, part  with  the  whole  or  any  portion  of  her  interest  in  real  estate, 
if  the  deed  be  acknowledged  in  the  mode  prescribed  by  the  statute 
concerning  the  proof  of  deeds,  Jackson  ex.  dem. ;  Campbell  & 
Reade  v.  Holloway,  7  Johns.  R.  81.  In  this  case,  A.  being  seized 
of  land  in  right  of  his  wife,  executed  a  lease  to  B.  for  life,  in  1796, 
which  was  assigned  to  C.  In  1806,  A.  and  his  wife  executed  a  lease 
to  D.  for  the  same  land,  for  the  same  lives,  and  with  the  same  cove- 
nants. A.  died  in  1808,  and  the  wife  after  the  death  of  the  husband 
in  1809,  received  rent  of  C.  Held,  that  the  lease  of  1796  was  void 
as  to  her;  and  she  having  made  a  valid  lease  in  1806  to  D.,  she 
could  not  affirm  the  lease  of  1796  to  the  prejudice  of  D. 


WHOMAYBELESSORS.  75 

will  be   right   to    mention   the   chief    cases   of    this 
description. 

First,  those  persons  acting  by  virtue  of  Powers. 

It  would  be  altogether  foreign  to  the  subject  of  these 
lectures,  were  I  to  go  into  any  description  of  the  his- 
tory and  nature  of  Poivers,  a  subject  on  which  volumes 
have  been  written,  and  on  which  volumes  probably  will 
be  written.-^  A  power  is  the  creature  of  the  Statute 
of  Uses,  it  had  no  existence  at  common  law.  At  com- 
mon law  no  man  could  give  an  estate  who  was  not 
himself  seised  or  possessed  of  an  estate.^*'  But  the 
Statute  of  Uses  having  enabled  a  person  seised  of  real 
property  to  convey  it  by  one  assurance  to  iises,  that  is 
to  say,  in  plain  English,  purposes^  to  be  declared  and 
made  manifest  by  some  subsequent  document,  it  has 
been  always  held  on  the  construction  of  that  statute, 
that  the  person  who  conveys  the  estate  need  not  be  the 
same  person  who  is  to  declare  the  uses  to  which  it  is 
conveyed ;  thus,  if  A.  has  an  estate  in  fee  simple,  he 
may  convey  it  to  B.,  to  such  uses  as  C.  shall  appoint ; 
C.  may  appoint  that  it  shall  be  to  the  use  of  D.  in  fee- 
simple,  and  if  he  do,  D.  becomes  *seised  of  an  r*j^o-| 
estate  in  fee-simple  in  the  land ;  but  C.  might 
equally  appoint  to  the  use  of  D.  for  seven  years.  And 
if  he  did  so,  D.  would  have  a  lease  for  seven  years, 
although  C,  from  whom  he  received  it,  would  have 
himself  no  estate  at  all.^^     This  is  to  put  the  very  sim- 

2^  See  Sugden  on  Powers. 

2^  At  common  law  it  was  essential  to  the  validity  of  transfers  of 
land  that  corporal  possession  of  the  land  should  be  delivered  to  the 
purchaser  in  the  presence  of  his  neighbours.  This  mode  of  transfer 
was  called  a  feoffment,  with  livery  of  seisin.  Sugden  on  Powers, 
c.  1 ;  2  Black.  Comm.  310. 

2'^  Uses  existed  at  common  law  before  the  Statute  of  Uses,  ("27 
lien.  8,  c.  10)  was  passed ;  but  they  were  considered  to  create  merely 


76  LANDLORD    AND    TENANT. 

plest  case.  But  it  frequently  happens  that  it  is  thought 
convenient  in  settling  estates,  that  persons  sometimes 
having  a  life  interest,  sometimes  even  no  beneficial 
r*4-l-i  ii^terest  at  all,  should  be  enabled  to  *grant  leases 
of  a  certain  duration,  and  on  certain  conditions. 
In  such  cases,  in  order  to  enable  them  to  do  so,  the 
land  is  conveyed  to  the  use,  amongst  other  uses,  that 
the  leases  so  made  by  them  shall  be  valid.  And  then, 
as  their  appointment  would  have  given  a  fee  had  the 
estate  been  conveyed  to  such  uses  in  fee  as  they  should 
appoint,  so  will  the  minor  interest  take  effect  by  virtue 

a  trust  or  confidence  in  the  person  to  whom  the  estate  was  conveyed, 
to  dispose  of  it  as  the  person  by  whom  it  was  conveyed  should  direct. 
This  trust  or  confidence  was  cognizable  only  in  a  court  of  equity,  and 
the  person  to  whom  the  estate  was  conveyed  was,  to  all  intents  and 
purposes,  the  owner  of  the  estate  at  law.  Thus,  under  a  feoffment 
by  A.  to  B.,  to  the  use  of  C,  B.  became  the  legal  owner,  and  C.  (the 
cestui  que  use^  had  merely  an  equitable  interest  in  the  land.  Great 
inconvenience  was  found  to  result  from  this  separation  between  the 
beneficial  and  the  legal  ownerships.  The  Statute  of  Uses  was  passed 
to  annex  the  legal  ownership  to  the  equitable  estate;  and  the  change 
effected  by  it  is  simply  this :  the  statute  executes  the  use,  that  is  to 
say,  it  converts,  by  an  arbitrary  enactment,  the  interest  of  the  cestui 
que  use  into  a  legal  estate;  annexing  to  it  the  "lawful  seisin  estate 
and  possession"  which  was  before  in  the  person  to  whom  the  estate 
was  conveyed.  After  the  passing  of  the  Statute  of  Uses  the  Courts 
of  Law  held  that  an  use  could  not  be  limited  upon  an  use,  that  is  to 
say,  that  where  there  were  several  declarations  of  trust,  the  statute 
would  operate  on  the  first  of  them  only.  Therefore  if  an  estate  was 
limited  to  A.,  to  the  use  of  B.,  to  the  use  of  C,  the  legal  estate  was 
held  to  be  in  B.,  with  a  mere  trust  in  equity  for  the  benefit  of  C. 
Upon  this  foundation  rests  the  English  system  of  trusts,  which  are 
in  fact  unexecuted  uses.  See  Sugden  on  Powers,  chap.  1,  sects.  1  & 
2.  A  clear  understanding  of  this  elementary  matter  is  important; 
for  it  is  the  foundation  of  a  great  part  of  our  system  of  conveying 
real  property.  See  Sanders  on  Uses  and  Trusts ;  Hayes  on  Convey- 
ancing, c.  2. 


WHO    MAY    BE     LESSORS.  77 

of  the  iiower,  as  it  is  called,  which  they  possess,  of 
appointing  it.  And  when  a  lease  is  thus  created  by 
the  exercise  of  a  power,  it  is  considered  as  if  it  had 
been  created  by  the  person  who  gave  the  power,  and 
as  if  it  had  been  inserted  in  the  very  instrument  or 
settlement  by  which  the  power  was  created ;  for  if  I 
convey  land  to  the  use  of  such  person  as  A.  B.  shall 
name,  when  A.  B.  has  made  a  nomination,  his  nominee 
is  my  grantee,  and  not  A.  B.'s,  since  the  property 
emanated  from  me,  and  A.  B.  was  only  my  instrument 
to  point  out  the  channel  into  which  it  Avas  to  pass."^ 
All  which,  so  far  as  it  applies  to  the  case  of  a  lease, 
you  will  find  clearly  explained  in  the  great  case  of 
Isherwood  v.  Oldknow,  3  M.  &c  S.,  382,  and^  in 
Rogers  v.  Humphreys,  4  A.  &  E.,  299;  (31  E.  C.  L. 
E,.  14:4.)(a)  I  will  say  no  more  on  the  subject  of 
powers,  or  of  the  division  of  them  into  powers  ap'pen- 
dant^  collateral^  and  in  gross^^  the  subject  more  properly 

2^  Sugden  on  Powers,  c.  8,  s.  4. 

2^  A  power  is  said  to  be  appendant  wben  it  is  given  to  a  person  who 
Las  an  estate  in  the  land,  and  the  estate  to  be  created  by  the  power 
is  to  take  effect  in  possession  during  the  continuance  of  the  estate  to 
which  the  power  is  annexed ;  as,  for  instance,  a  power  to  make 
leases.  A  power  is  in  gross  where  the  person  to  whom  it  is  given 
has  an  estate  in  the  land ;  but  the  estate  to  be  created  by  the  power 
is  not  to  take  effect  until  after  the  determination  of  the  estate  to 
which  it  relates;  as  a  power  to  jointure  an  after-taken  wife.  Powers 
are  collateral  when  they  are  given  to  strangers;  that  is  to  say,  to 
persons  who  have  neither  a  present  nor  a  future  estate,  or  interest 
in  the  lands.  Watkins  on  Convey,  bk.  1,  c.  21.  It  often  happens 
that  the  instrument  by  which  a  power  of  leasing  is  conferred,  limits 
its  exercise  by  providing  that  the  ancient  and  accustomed  rent  shall 
be  reserved,  or  that  the  leases  shall  contain  covenants  of  a  particular 
description.  In  these  cases,  the  leases  are  void  if  they  are  not  made 
in   accordance  with   the   directions  given ;  and   much   litigation   has 

(a)  4  Kent,  337. 


78  LANDLORD    AX  D    TEXAN  T. 

r*4'=)l  belonging  *to  a  conveyancing  than  common  law 
Lecture.  It  was,  however,  absohitely  necessary 
that  I  should  point  out  to  you  in  what  way  leases  made 
by  persons  executing  powers  take  effect,  and  how  and 
why  they  are,  in  contemplation  of  law,  made  by  the 
person  who  created  the  power,  although  they  frequently 
r^Af^n  have  the  effect  of  overriding  part  *of  an  estate 
vested  in  the  person  who  exercises  the  power ; 
as  for  instance,  where  tenant  for  life,  having  a  power 
of  leasing,  makes  a  lease  to  take  effect  immediately, 
that  lease,  as  is  obvious,  overrides  part  of  his  own 
estate  so  long  as  his  own  life  continues ;  since,  had  he 
not  exercised  the  power,  he  would  have  continued 
tenant  for  life  in  possession ;  whereas,  by  exercising  it, 
he  has  converted  his  estate  in  possession  into  a  reversion 
on  the  term  vested  in  the  lessee."*^ 

arisen  from  limitations  of  this  sort  iipon  leasing  powers.  See  Doe  d. 
Douglass  V.  Lock,  2  A.  &  E.  705,  (29  E.  C.  L.  R.  325,) ;  Fryer  v. 
Coombs,  11  A.  &  E.  403,  (39  E.  C.  L.  R.  126,) ;  Dayrell  v.  Hoare, 
12  A.  &  E.  356,  (40  E.  C.  L.  R.  182,) ;  Rutland  v.  Wythe,  10  CI. 
&  F.  419 ;  Doe  d.  Lord  Egremont  v.  Stephens,  6  Q.  B.  208,  (51  E. 
C.  L.  R.  208,);  Doe  d.  Lord  Egremont  v.  Williams,  11  Q.  B.  688, 
(63  E.  C.  L.  R.  688,);  and  Doe  d.  Biddulph  v.  Hole,  15  Q.  B.  848, 
(69  E.  C.  L.  R.  848,).  See  also  the  12  &  13  Vic.  c.  26  (an  act  for 
granting  relief  against  defects  in  leases  made  under  powers  of  leasing 
iu  certain  cases);  the  12  and  13  Vic.  c.  110,  and  the  13  Vic.  c.  17. 
By  these  acts  leases  made  bond  fide  under  leasing  powers,  and  under 
v.hich  the  lessees  have  entered,  but  which  are  invalid  through  the 
non-observance  or  omission  of  some  condition  or  restriction,  or  by 
reason  of  any  other  deviation  from  the  terms  of  the  power,  are  to  be 
deemed,  in  equity,  contracts  for  such  leases  as  might  have  been 
gi-anted.  And  if  the  persons  against  whom  such  leases  are  invalid 
accept  rent,  and,  before  or  upon  its  acceptance,  sign  any  receipt, 
memorandum,  or  note  in  writing,  confirming  the  leases,  they  are  to 
be  deemed  to  be  confirmed  as  against  them.  See  Sugden's  Essay  on 
the  Real  Property  Statutes,  e.  vi. 

^°  See  the  cases  cited  in  the  last  note. 


WHOMAYBELESSORS.  79 

I  will  just  mention  the  case  of  a  guardian.  A 
guardian  in  socage^^  may,  I  apprehend,  on  the  authority 
of  Bacon's  Abridgment,  Tit.  Lease,  s.  1,  par.  9,  and 
Eoe  V.  Hodgson,  2  Wils.  129,  make  a  lease  which  will 
be  good  so  long  as  his  own  interest  as  guardian  lasts, 
and,  when  that  is  at  an  end,  will  be  voidable  only,  not 
absolutely  void,  and  capable  of  being  confirmed  by  the 
infant  at  his  full  age ;  and  the  better  opinion  seems  to 
be,  that  the  lease  of  a  testamentary  guardian  stands  on 
the  same  footing,  inasmuch  as  statute  12  Car.  II.,  c. 
24,  from  which  testamentary  guardians  derive  their 
authority,  seems  to  assimilate  their  office  to  that  of  a 
guardian  in  socage P  {a) 

^'  Guardianship  m  socage,  or  hy  the  common  law,  existed  wben  a 
minor  under  fourteen  was  seized  of  lands  or  other  hereditaments 
lying  in  tenure  and  holden  by  socage.  In  this  case  the  guardianship 
devolved  upon  the  nest  of  kin,  to  whom  the  inheritance  could  not 
possibly  descend ;  for  instance,  where  the  estate  descended  from  the 
minor's  father,  his  uncle  by  the  mother's  side  was  guardian.  For 
before  the  3  &  4  Wm.  4,  c.  106,  he  could  not  possibly  inherit.  Litt. 
s.  123  ;  Co.  Litt.  87  b;   1  "Black  Com.  461. 

32  12  Car.  2,  c.  24,  ss.  8-9.  The  testamentary  guardian  has  the 
custody,  not  only  of  the  lands  descended  from  or  left  by  the  father, 
but  of  all  lands  acquired  by  the  infant  during  his  non-age,  which  the 
guardian  in  socage  had  not.     Watkins  on  Conv.  483. 

(a)  Generally,  in  the  United  States,  there  are  statutory  provisions 
for  the  appointment  of  guardians,  and  an  appointment  under  the 
statutes,  except  in  the  case  of  testamentary  guardians,  is  necessary  to 
give  validity  to  the  acts  of  the  guardian.  In  IMassachusetts,  South 
Carolina  and  Maryland,  it  has  been  expressly  held,  that  the  father, 
as  natural  guardian  of  an  infant,  has  no  authority  to  make  a  lease  of 
the  infant's  land.  May  v.  Calder,  2  Mass.  55 ;  Anderson  v.  Darby, 
1  Nott  &  Mc.  369 ;  M'Gruder  v.  Peter,  4  Gill  &  Johns.  323.  A 
lease  for  a  longer  period  than  the  infancy  of  the  ward,  is  void,  lloss 
V.  Gill,  4  Call.  250. 

In  New  York,  in  the  case  of  Byrne  v.  Van  Ilocsen,  5  Johns.  66,  it 


80  LANDLORD    AND    TENANT. 

r*471  *With  regard  to  an  executor  or  administrator, 
I  need  hardly  say  that,  as  all  terms  of  years  be- 
longing to  the  deceased  are  absolutely  vested  in  him, 
so  that  he  may,  if  he  think  proper,  sell  them,  it  is  like- 
wise in  his  power  to  make  underleases,  if  he  see  fit,  for 
the  benefit  of  the  estate  to  do  so."^ 

It  remains,  before  concluding  this  part  of  the  sub- 
ject, to  mention  one  or  two  cases  in  which  parties  who, 
as  far  their  estates  are  concerned  would  have  been  com- 
petent to  lease,  are  prevented  from  doing  so  by  dis- 

22  Bac.  Ab.  Leases,  (T.)  7.  Several  executors  being  in  law  but 
one  person,  a  grant  by  one  of  them  is  as  effectual  as  if  all  had  joined, 
and  it  does  not  matter  whether  it  be  made  in  the  name  of  the  one, 
or  whether  it  purport  to  be  the  grant  of  all,  and  one  only  executes 
it;  ih.  See  also  Keating  v.  Keating,  1  Lloyd  &  Goold,  133,  where 
a  lease  by  one  executor  appears  to  have  been  treated  as  valid ;  and 
the  judgment  in  Doe  d.  Hayes  v.  Sturges,  7  Taunt.  222,  (2  E.  C.  L. 
R.  335,).  Executors  disposing  of  terms  of  years  vested  in  them  in 
right  of  their  testators,  may  make  a  good  title,  even  against  a  specific 
legatee,  unless  the  disposition  be  fraudulent.  Williams  on  Executors, 
part  III.  book  I.  c.  1. 

was  held,  that  where  a  widow  with  children  under  age,  entered  and 
took  possession  of  the  husband's  property  after  his  death,  the  pre- 
sumption of  law  is,  that  she  enters  as  guardian  in  socage  to  her 
children — that  this  guardianship  ceases  when  the  infant  arrives  at  the 
age  of  fourteen  years,  so  far  as  to  enable  the  infant  to  enter  and  take 
the  land  to  himself.  Yet  if  no  other  guardian  succeeds,  the  mother's 
guardianship  will  continue.  That  the  guardian  in  socage  is  entitled 
to  the  custody  of  the  land  and  the  profit,  for  the  benefit  of  the  heirs, 
and  may  lease  it ;  and  in  Pond  v.  Curtis,  7  Wendall,  46,  it  is  said, 
that  the  guardian  may  bring  the  action  for  the  non-payment  of  the 
rent  in  his  own  name,  though  the  suit  be  commenced  after  the  ward 
has  attained  his  age.  The  general  rule,  however,  is,  that  a  suit 
should  be  brought  in  the  name  of  the  ward,  thus,  A.  B.  by  C.  D.,  his 
guardian.     See  Carskadden  v.  M'Ghee,  7  W.  &  S.  140. 


WHOMAYBE     LESSORS.  81 

abilities  imposed  upon  them  by  some  general  principle 
of  law. 

And  first  a  person  non  compos  mentis^  as  he  can  make 
no  binding  contract,  so  he  can  execute  no  valid  lease ; 
his  committee,  however,  may  do  so  under  the  direction 
of  the  Court  of  Chancery  by  virtue  of  statute  43  Geo. 
III.  c.  75,  and  11  Geo.  IV.,  &  1  Wm.  IV.  c.  65.^* 

*A  lease  made  by  a  married  woman  is  abso-  r^j^o-i 
lutely  void,^^  unless  indeed  it  were  made  of  her 
sole  and  separate  property,  in  which  case,  though  it 
would  confer  no  right  at  law,  equity  would  enforce  it, 
and  compel  the  trustee  to  execute  one  which  would 
stand  good,  even  at  law,^® 

With  regard  to  leases  executed  by  infants,  there  pre- 
vails a  great  deal  of  doubt  and  difficulty.  The  question 
is,  not  whether  the  lease  made  by  the  infant  is  binding, 

34  Co.  Litt.  247  a;  Beverley's  Case,  4  Rep.  123.  Idiots,  whom 
Lord  Coke  calls  "fools  natural/'  are  comprehended  within  this  terra. 
Before  the  statutes  mentioned  above,  it  had  been  held  that  the 
committee  of  a  lunatic  had  no  power  to  make  a  lease.  Knipe  v. 
Palmer,  2  Wils,  1-30.  The  general  statement  in  the  text  requires 
some  qualification ;  for,  according  to  the  later  decisions,  a  contract  is 
not  vacated  by  the  unsoundness  of  mind  of  one  of  the  contracting 
parties,  if  this  fact  is  unknown  to  the  other,  and  no  advantage  is 
taken  of  the  lunatic.  And  this  rule  applies  especially  to  cases  in 
which  the  contract  is  not  merely  executory,  but  has  been  executed  in 
whole  or  in  part,  so  that  the  parties  cannot  be  restored  altogether  to 
their  original  position.  Molton  v.  Camroux,  2  Exch.  487 ;  S.  C.  in 
error,  4  Exch.  17  j  Beavan  v.  McDonnell,  9  Exch.  309. 

3*  See  the  judgment  in  Goodright  v.  Straphan,  Cowp.  201.  A 
married  woman  may,  however,  make  a  valid  lease  under  a  power. 
Sugden  on  Powers,  c.  4,  s.  1. 

3^  A  married  woman,  who  has  property  settled  to  her  separate  use, 
without  any  restraint  on  alienation,  is  deemed,  in  equity,  to  be  a 
feme  sole,  and  she  may  dispose  of  the  property  accordingly.  Sugden 
on  Powers,  c.  4,  s.  1. 

6 


82  LANDLORD    AND    TENANT. 

for  it  certainly  is  not  so,  but  whether  it  is  absolutely 
void,  or  only  voidable.  In  the  former  case,  it  would  be 
incapable  of  confirmation  by  the  infant  at  his  full  age. 
In  the  latter,  it  might  be  confirmed  by  any  act  done 
after  his  attaining  his  majority,  and  amounting  to  a  re- 
cognition of  it,  such,  for  instance,  as  the  receipt  of  the 
rent  reserved  on  it.  The  better  opinion  seems  to  be, 
that  the  latter  is  the  true  state  of  the  law,  and  that 
r*4.Q"i  *^^  ^^  ^^^y  voidable.  See  the  question  thoroughly 
discussed  in  Zouch  d.  Abbott  v.  Parsons,  3 
Burr.  1806.-^^(«) 

Having  now  touched  upon  the  difierent  estates  and 
capacities  of  persons  capable  of  making  leases,  I  will 
proceed  to  the  next  ^question,  namely,  loho  may  he  lessee, 
having  first  merely  observed  that  though,  for  the  sake 
of  simplicity,  I  have,  in  the  observations  I  have  been 
making,  confined  myself  to  the  case  of  a  single  lessor, 
yet  that  where  two  or  more  persons  are  seised  or  pos- 

^^  See  also  1  Piatt  on  Leases,  28 ;  and  the  arguments  and  judg- 
ments in  Williams  v.  Moor,  11  M.  &  W.  256  ;*  The  Newry  and 
Enniskillen  Railway  Co.  v.  Coombe,  3  Exch.  565  ;  The  North-West- 
ern Railway  Co.  v.  McMichael,  5  Exch.  114,  and  The  Dublin  and 
Wicklow  Railway  Co.  v.  Black,  8  Exch.  181.  The  Court  of  Chan- 
cery may  authorise  the  granting  of  leases  of  lands  belonging  to 
infants,  when  it  is  for  the  good  of  the  estate.  11  Geo.  4,  &  1  Wm. 
4,  c.  65. 

(a)  In  the  United  States  generally,  conveyances  of  land  by  minors 
for  valuable  consideration,  are  held  to  be  voidable,  not  void.  Ken- 
dall V.  Lawrence,  22  Pick.  540;  Gillet  v.  Stanley,  1  Hill,  121 ;  Bool 
V.  Mix,  17  Wend.  119;  Wheaton  v.  East,  5  Yerg.  41;  Phillips  v. 
Green,  5  Monroe,  344;  Worcester  v.  Eaton,  13  Mass.  375;  Bank  v. 
Chamberlin,  15  Mass.  220;  Jackson  v.  Carpenter,  11  John.  539; 
Farr  v.  Sumner,  12  Verm  28;  Ridgeley  v.  Crandall,  4  Md.  435; 
Cummings  v.  Powell,  S  Texas,  80 ;  Ferguson  v.  Bell,  17  Mis.  347 ; 
M'Ginn  v.  Shaeffer,  7  W.  414. 


WHOMATBELESSOES.  83 

sessed  as  joint  tenants,  or  tenants  in  common,  each  of 
them  may  make  leases  of  his  or  her  respective  share ; 
or  they  may  all  join  in  one  lease,  which,  in  the  case  of 
joint  tenants,  will  operate  as  a  joint  lease  of  the  whole, 
bnt,  in  the  case  of  tenants  in  common,  as  a  lease  by 
each  of  his  respective  share,  and  a  confirmation  by  each 
as  to  the  shares  of  the  others.  See  Heatherley  d. 
Worthington  v.  Weston,  2  Wils.,  232 ;  Mantle  v.  Wol- 
lington,  Cro.  Jac.  166.^^ 

38  See  Com.  Dig.  Estates  ly  Grant,  (G.  G)  (K.  8).  Doe  d.  Poole 
V.  Errington,  1  A.  &  E.  750,  (28  E.  C.  L.  R.  349,)  and  the  judg- 
ment of  Mr.  Justice  Williams,  in  Beer  v.  Beer,  12  C.  B.  80,  (74  E. 
C.  L.  R.  80,).  Questions  frequently  arise  in  practice  as  to  whether 
tenants  in  common  should  sue  jointly  or  separately  on  covenants 
contained  in  demises  of  the  joint  property,  and  numerous  decisions 
occur  in  the  books  upon  this  subject.  The  result  of  the  cases  appears 
to  be  shortly  this.  Where  tenants  in  common  demise  jointly,  and 
the  covenant  to  pay  rent,  or  perform  any  other  act,  is  made  with 
them  jointly,  they  should  join  in  the  action.  If  they  demise  sepa- 
rately, reserving  a  separate  rent,  they  must  sue  separately.  The 
question  depends  mainly  upon  the  mode  in  which  the  contract  is 
framed.  If  the  contract  is  unambiguous  and  clearly  joint,  the  remedy 
will  be  joint,  although  it  may  appear  that  the  interests  of  the  cove- 
nantees are  several.  For  the  rule  that  a  covenant  with  several  per- 
sons is  to  be  construed  according  to  the  interest  of  the  parties,  is  a 
rule  of  construction  merely  which  is  only  applicable  where  the 
language  of  the  covenant  is  ambiguous,  and  which  will  not  control 
the  clearly  expressed  intention  of  the  parties.  Thus  in  Powis  v. 
Smith,  5  B.  &  A.  850,  (7  E.  C.  L.  B.  279,)  premises  had  been 
demised  by  two  tenants  in  common,  and  the  rent  had,  for  a  time,  been 
paid  to  the  agent  of  both.  Afterwards  they  gave  notice  to  the  occu- 
pier to  pay  one  moiety  of  the  rent  to  each  of  them ;  he  did  so,  and 
separate  receipts  were  given  to  him.  An  action  was  brought  by  both 
the  tenants  in  common  to  recover  rent  which  had  become  due  since 
the  notice.  At  the  trial  the  plaintiffs  were  non-suited  upon  the 
ground  that  they  ought  to  have  brought  separate  actions.  The  Court 
granted  a  new  trial,  holding  that  it  should  have  been  left  to  the  jury, 
as  a  question  of  fact,  to  consider  whether  the  original  joint  contract 


84  LANDLORD    AND    TENANT. 

r*"m        *[The  real  property  belonging  to  parishes  is 
vested  in  the  Churchwardens  and  Overseers  of 


had  been  altered,  and  whether  the  parties  had  entered  into  a  new 
contract  of  demise,  with  a  separate  reservation  of  rent  to  each,  or 
whether  they  had  merely  intended  to  make  an  alteration  in  the  mode 
of  receiving  the  rent.  In  Wilkinson  v.  Plall,  1  Bing.  N.  C.  713,  (27 
E.  C.  L.  R.  831,)  two  tenants  in  common  sued  jointly  for  double  the 
value  of  the  premises  which  had  been  holden  over  by  the  defendant 
after  the  expiration  of  a  demise.  It  appeared  upon  the  declaration 
that  there  had  been  no  joint  demise.  The  Court  held  that  the  plain- 
tiffs could  not  sue  jointly.  "  If,"  said  the  Lord  Chief  Justice  Tindal, 
in  delivering  judgment,  "  there  be  no  joint  demise  there  must  be 
several  actions  of  debt  for  rent,  for  a  joint  action  is  not  maintainable, 
except  upon  a  joint  demise."  In  this  case,  indeed,  the  action  was 
brought  for  double  value,  and  was  not  founded  upon  a  contract,  but 
the  Court  thought  that  as  the  damages  given  by  the  statute  when  a 
tenant  holds  over  are  a  compensation  for  the  rent,  they  ought  to 
stand  upon  the  same  footing  as  the  rent  itself.  The  later  cases  ap- 
pear to  show  that,  sti-ictly  speaking,  the  test  is  not  so  much  whether 
the  demise  is  joint  or  several,  as  whether  the  reservation  of  the  rent 
is  joint  or  several.  Practically  this  does  not  make  much  difference, 
for  the  reservation  of  the  rent  usually  follows  the  demise ;  but  it  is 
apprehended  that  if  two  tenants  in  common  were  to  join  in  a  lease 
which  was  so  framed  that  the  demise  was  distinctly  separate,  each 
demising  in  terms  his  share  only,  but  a  single  rent  were  reserved 
payable  to  the  two  jointly,  the  remedy  for  its  recovery  would  (at  all 
events  if  the  lease  were  by  deed,  Co.  Litt.  214  a,)  be  joint.  Indeed 
as  we  have  seen  in  the  text,  whenever  tenants  in  common  join  in  a 
lease,  it  operates  as  a  demise  by  each  of  his  share  only,  and  a  con- 
firmation by  each  of  the  shares  of  the  others.  In  Sorsbie  v.  Park, 
12  M.  &  W.  158*,  Baron  Parke  laid  down  the  rule  as  to  the  effect 
of  the  interest  of  the  covenantees  upon  the  mode  of  bringing  the 
action  in  the  following  terms  ; — "  T  think  the  coiTect  rule  is,  that  a 
covenant  will  be  construed  to  be  joint  or  several,  according  to  the 
interest  of  the  parties  appearing  upon  the  face  of  the  deed,  if  the 
words  are  cajioble  of  that  construction  ;  not  that  it  will  be  construed 
to  be  several  by  reason  of  several  interests,  if  it  be  expressly  joint." 
Similar  expressions  are   used  in  the  judgment  in  Bradburne  v.  Bot- 


WHOMAYBELESSORS.  85 

the  poor  *for  the  time  being,  as  a  quasi  coipo-    [*51] 

field,  14  M.  &  W.  572*.  la  Keigbtley  v.  Watson,  3  Exch.  722, 
Baron  Parke  said,  "The  rule  that  covenants  are  to  be  construed 
according  to  the  interest  of  the  parties,  is  a  rule  of  construction 
merely,  and  it  cannot  be  supposed  that  such  a  rule  was  ever  laid 
down  as  could  prevent  parties,  whatever  words  they  might  use,  from 
covenanting  in  a  different  manner.  It  is  impossible  to  say  that 
parties  may  not,  if  they  please,  use  joint  words,  so  as  to  express  a 
joint  covenant,  and  thereby  to  exclude  a  several  covenant,  and  that 
because  a  covenant  may  relate  to  several  interests,  it  is  therefore 
necessarily  not  to  be  construed  as  a  joint  covenant.  If  there  be 
words  capable  of  two  constructions,  we  must  look  to  the  interest  of 
the  parties  which  they  intended  to  protect,  and  construe  the  words 
according  to  that  interest."  And  in  Beer  v.  Beer,  12  C.  B.  80,  (74 
E.  C.  L.  B.  80,)  Mr.  Justice  Maule  distinctly  recognised  the  correct- 
ness of  this  rule.  «  Several  cases,"  said  the  learned  judge,  "  were 
cited  for  the  purpose  of  showing,  that,  whatever  the  nature  of  the 
subject  of  contract,  if  the  instrument  does  in  terms  necessarily  import 
that  the  promise  or  the  covenant  is  made  jointly  with  two,  then  the 
two  covenantees,  or  the  survivor,  must  bring  the  action.  That  is,  I 
think,  very  sound  law ;  and  it  is  beside  the  class  of  cases  where  the 
covenant,  which  from  its  language  might  be  either  joint  or  several, 
has  been  held  to  be  joint  or  several  according  to  the  interest  of  the 
covenantees.  You  are  not  to  impose  upon  the  instrument  a  meaning 
contrary  to  the  true  sense  of  the  words,  but  choose  between  two 
senses,  of  both  of  which  the  words  are  susceptible,  and  adopt  that 
which  is  most  conducive  to  the  interests  of  the  covenantees.  But 
where  the  covenant  is  not  capable  of  being  so  construed,  however 
severable  the  interests  of  the  covenantees  may  be,  if  the  language  they 
have  used  evince  an  intention  that  the  covenant  shcdl  be  Joint,  all  mxist 
join  in  an  action  upon  it."  See  also  the  notes  to  Eccleston  v.  Clip- 
sham,  1  Wms.  Saund.  153  ;  Foley  v.  Addenbrooke,  4  Q.  B.  197, 
(45  E.  C.  L.  R.  197,) ;  Hopkinson  v.  Lee,  6  Q.  B.  964,  (51  E.  C. 
L.  B.  964,)  (a  case  the  authority  of  which  may  perhaps  be  doubted)  ; 
Wakefield  v.  Brown,  9  Q.  B.  200,  (58  E.  C.  L.  R.  209,) ;  Harrold  v. 
Whitaker,  11  Q.  B.  147,  (63  E.  C.  L.  R.  147,) ;  and  Doe  d.  Camp- 
bell V.  Hamilton,  13  Q.  B.  977,  (06  E.  C.  L.  R.  977,)-  Tenants  in 
common  must,  it  seems,  sever  in  an  avowry   for  rent.     PuUen  v. 


86  LANDLORD    AND    TENANT. 

r#c9-|    ration,  by  the  *59  Geo.  3,  c.  12,  s.  17,  and  they 
are  entitled  to  make  leases  of  these  lands.^^] 

Palmer,  3  Salk.  207;  Harrison  v.  Barnby,  5  T.  R.  246.  Joint 
tenants  have  an  unity  of  title  and  interest,  and  differ  in  this  respect 
from  tenants  in  common.  The  general  rule  is  that  they  must 
sue  jointly  in  respect  of  contracts  relating  to  their  estate.  Co.  Litt. 
180  b,  Bac.  Ab.  Joi7it  Tenants  and  Tenants  in  common  (K.).  It  is 
apprehended,  however,  that  this  general  rule,  like  the  opposite  one  in 
the  case  of  tenants  in  common,  is  subject  to,  and  may  be  controlled 
by  the  express  and  unambiguous  contract  of  the  parties.  One  joint 
tenant  may  distrain  alone,  but  he  must  avow  in  his  own  right,  and 
also  as  bailiff  to  the  other.  Pullen  v.  Palmer,  3  Salk.  207.  If 
several  joint  tenants  demise  at  an  entire  rent,  and  one  of  them  aliens 
his  portion  of  the  reversion,  the  severance  of  the  reversion  destroys 
the  right  to  distrain  for  the  rent.  Stavely  v.  AUcock,  16  Q.  B.  636, 
(71  E.  C.  L.  R.  636,). 

^^  Before  this  statute,  a  lease  by  parish  officers  of  land  belonging  to 
the  parish,  created  only  a  tenancy  from  year  to  year.  Doe  d.  Higgs  v. 
Terry,  5  Nev.  &  31.  556.  It  does  not  extend  to  copyholds.  Doe  d. 
Bailey  v.  Foster,  3  C.  B.  215,  (54  E.  C  L.  R.  215,).  Under  this 
act  the  church-wardens  and  overseers  are  a  corporation  of  a  peculiar 
kind ;  they  may  take  by  demise  without  acceptance  under  seal,  and 
any  one  of  them  may  authorise  a  distress  for  the  rent.  Smith  v. 
Adkins,  8  M.  &  W.  362*;  Gouldsworth  v.  Elliott,  11  M.  &  W.  337*. 
See  as  to  the  effect  of  this  statute  upon  property  which  has  been 
conveyed  to  trustees,  Rumball  v.  Munt,  8  Q.  B.  382,  (55  E.  C.  L. 
R.  382,) ;  The  Churchwardens  of  Deptford  v.  Sketchley,  ib.  394,  (55 
E.  C.  L.  R.  394,) ;  and  Doe  d.  Edney  v.  Benham,  7  Q.  B.  976,  (53 
E.  C.  L.  R.  976,).  The  5  &  6  Wm.  4,  c.  69,  (an  act  to  facilitate 
the  conveyance  of  workhouses  and  other  property  of  parishes,  and  of 
incorporations  or  unions  of  parishes  in  England  and  Wales,)  does  not 
transfer  the  legal  estate  in  parish  workhouses,  &c.,  from  the  church- 
wardens and  overseers  to  the  guardians  of  unions.  Doe  d.  Norton  v. 
Webster,  12  A.  &  E.  442,  (40  E.  C.  L.  R.  223,).  Since  the  59  Geo.  3, 
c.  12,  leases  not  exceeding  the  term  of  three  years  may  be  granted 
by  the  parish  officers  without  writing,  if  all  of  them  concur;  but 
where  a  document  was  signed  by  one  overseer  only,  and  did  not 
appear  to  be  a  grant  by  all  the  parish  officers,  as  he  did  not  profess 


WHOMAYBELESSEES.  87 

*Next  with  regard  to  the  Xessee.  Any  person  r*cQ-| 
is  capable  of  being  a  lessee,  so  far  as  the  mere 
vesting  of  the  estate  is  concerned ;  with  regard,  how"- 
ever,  to  any  liability  for  rent,  or  upon  the  other  stipula- 
tions usually  contained  in  a  lease,  on  the  part  of  the 
lessee,  a  person  under  disability  is  in  the  same  situation 
as  in  the  case  of  any  other  contract.  Thus  an  infant 
lessee,  if  he  elect  at  his  full  age  to  disagree  to  the 
lease,  will  not  be  liable  for  rent.  See  Ketsey's  Case, 
Cro.  Jac.  320 ;  and  Lowe  v.  Griffith,  1  Scott,  58.  He 
must,  however,  make  his  election  within  a  *rea-  rmp:A-i 
sonable  time  after  attaining  his  full  age,  wdiether 
he  will  avoid  the  lease  or  no ;  and  if  he  do  not,  he  will 
become  liable  for  rent.  See  Holmes  v  Blogg,  8  Taunt. 
35;  (4  E.  C.  L.  R,  29 ;)  Ketsey's  Case,  Cro.  Jac.  320.^'^ 

to  sign  on  behalf  of  all,  nor  was  it  shown  by  the  document  itself,  or 
by  extrinsic  evidence,  that  they  all  concurred,  it  was  held  that  there 
was  no  valid  lease  under  this  statute.  Doe  d.  Lansdell  v.  Gower, 
17  Q.  B.  589,  (79  E.  C.  L.  R.  589,).  Under  s.  12  of  this  act,  the 
church-wardens  and  overseers  are  empowered,  with  the  consent  of  the 
vestry,  to  take  lands  within  or  near  the  parish  on  lease,  for  the  employ- 
ment of  the  poor.  In  a  case  in  which  they  took  the  land  jointly  with 
the  surveyors  of  the  highways,  it  was  held  that  the  statute  did  not 
apply,  and  that  they  were  personally  liable  for  use  and  occupation. 
Uthwatt  V.  Elkins,  13  M.  &  W.  772*.  Where  a  tenant  was  let  into 
possession  by  the  church-wardens  of  a  parish,  and  thereupon  became 
either  a  tenant  from  year  to  year,  or  at  will,  it  was  held  that  this  tenancy 
was  sufficiently  determined  by  a  notice  to  quit,  which  purported  to 
be  given  on  behalf  of  the  churchwardens  and  overseers  who  were  in 
office  when  the  notice  was  served  (but  who  were  not  the  persons  who 
had  let  the  tenant  into  possession),  and  which  did  not  state  to  whom 
the  possession  was  to  be  given  up.  Doe  d.  Bailey  v.  Foster,  3  C.  B. 
215,  (54  E.  C.  L.  R.  215,). 

''o  See  also  Kirton  v.  Elliott,  2  Bulst.  69,  which  appears  to  be  the 
same  case.  Com.  Dig.  Enfant  (C.  0).  1  Piatt  on  Leases,  528.  The 
Newry  &  Enniskillen  Railway  Co.  ?'.  Coombe,  3  Exch.  565 ;  The 
North-Western  Railway  Co.  v.  M'Michael,  5  Exch.  114. 


88  LANDLORD    AND    TENANT. 

And,  as  an  infiint  has  a  right  to  bind  himself  to  pay 
for  necessaries,  and  lodging  is  an  indispensable  neces- 
sary of  life,  it  seems  consistent  with  principle,  that  he 
should  be  able  to  bind  himself  to  pay  for  that  even 
during  his  minority ;  and  therefore  I  conceive  that  if  a 
young  man  under  age  were  studying  law  in  the 
Temple,  or  in  an  attorney's  office,  and  his  family  were 
resident  at  a  distance  from  town,  lie  would  he  liable  to 
IMy  the  rent  of  the  lodgings  in  ivhicJi  he  resided^  provided 
they  were  not  of  an  extravagant  description,  so  as  to 
be  unsuitable  to  his  rank  and  condition  in  life ;  and  I 
think  that  the  same  rule  would  apply  to  other  analo- 
gous cases.  Indeed,  in  Lowe  v.  Griffith,  1  Scott,  458, 
where  an  infant  practised  the  trade  of  a  barber,  and 
rented  a  house,  it  was  left  to  the  jury,  and  held  by  the 
Court  afterwards  to  have  been  properly  left  to  them,  to 
say  whether  the  house  was  a  necessary  of  life,  or  a 
mere  incident  to  his  trade ;  for,  in  the  latter  case,  inas- 
much as  an  infant  is  incapable  by  law  of  trading,  he 
would  not  be  hable.  The  distinction,  you  see,  is  be- 
p^--  tween  the  necessary  of  life  for  which  *an  infant 
may  bind  himself  to  pay,  if  it  be  proper  for  one 
of  his  estate  and  degree,  and  the  thing  necessary  not 
for  the  support  of  life  in  his  due  sphere,  but  for  some 
collateral  purpose.  For  instance,  in  the  case  I  have 
just  put  of  an  infant  residing  in  London  for  the  pur- 
pose of  studying  law  under  a  special  pleader,  I  think 
he  might  contract  to  pay  for  suitable  lodgings;  but 
suppose  the  infant  were  to  take  out  his  certificate  as  a 
special  pleader,  and  were  to  hire  expensive  chambers 
with  an  extra  room  for  the  accommodation  of  a  clerk, 
and  another  for  pupils,  I  am  disposed  to  think  that  if 
an  action  were  commenced  against  him  for  the  rent, 
the  Judge  woidd  intimate  that  that  was  not  a  species 


WHOMAYBELESSEES.  89 

of  demand  which  could  be  properly  ranked  under  the 
term  necessaries}^ 

So,  with  regard  to  a  married  woman,  there  is  no  rule 
of  law  which  prevents  a  lease  from  being  granted  to 
her.  Only  at  the  determination  of  her  coverture  she 
may,  if  she  think  proper,  waive  and  disagree  to  it,  and 
she  will  then  be  wholly  free  from  any  sort  of  liability 
arising  from  it.^^  And  these  points,  with  regard  to 
infants  *and  to  married  women  are  not  pecu-  r#c^-| 
liarly  applicable  to  leases — for  the  general  rule 
of  law  is,  that  a  grant  of  any  estate  to  an  infant  or 
married  woman  is  prima  facie  good,  because  the  law 
presumes  it  to  be  for  their  benefit,  but  at  the  determi- 
nation of  the  infancy  or  coverture  they  may,  if  they 
think  proper,  disagree  to  it. 

As  to  an  alien, — at  common  law,  he  might,  if  he 
thought  proper,  purchase  land,  either  for  an  estate  of 
freehold,  or  a  term,  but  he  was  incapable  of  holding  it ; 
and,  upon  office  found,  the  Crown  became  entitled  to 
it,  1  Inst.  2  b.  Subsequently  by  stat.  32  Hen.  8,  c. 
16,  an  Act  which  seems  to  have  been  dictated  by  the 
jealousy  once  felt  of  foreign  manufactures,  all  leases  of 
dwelling-houses  and  shops  to  alien  artificers  and  handi- 
craftsmen, were  declared  absolutely  void;  see  on  the 
construction  of  this  Act,  Lapierre  v.  Mcintosh,  9  A.  «& 

""^  As  to  the  construction  put  upon  the  term  necessaries,  in  the 
later  cases,  see  Harrison  v.  Fane,  1  M.  &  Gr.  550,  (39  E.  C  L.  K. 
556,) ;  Peters  v.  Fleming,  6  M.  &  W.  42  ;*  Brooker  v.  Scott,  11  M. 
&  W.  67;*  Wharton  v.  Mackenzie,  5  Q.  B.  606,  (48  E.  C.  L. 
R.  606,). 

*^  See  Co.  Litt.  3  a.  During  the  coverture  she  will  not  of  course 
be  liable  to  be  sued  upon  the  lease.  By  the  11  Geo,  4,  &  1  Wm.  4, 
0.  65,  s.  12,  leases  to  which  married  women  are  entitled  may  be 
surrendered  and  renewed  under  the  directions  of  the  Court  of 
Chancery. 


90  LANDLORD    AND    TENANT. 

E.  857  ;  (36  E.  C.  L.  R  305.^^)  But  any  alien  not  fall- 
ing within  this  statute,  may  take  a  lease  of  a  house  for 
his  residence,  for,  as  Lord  Coke  observes  (1  Inst.  2  b.), 
without  a  dwelling  he  cannot  trade  or  commerce.  And 
an  alien,  who  has  been  naturalised,  or  has  become  a 
denizen,  may  hold  a  lease  or  any  other  real  property, 
as  a  natural-born  subject  may.^^(a) 

'^  See  also  Jevens  v.  Harridge,  1  Wms.  Saund.  5.  This  statute 
did  not  make  void  an  assignment  of  a  lease  to  an  alien.  Wootton  v. 
Steffenoni,  12  M.  &  W.  129  f  and  see  now  the  7  &  8  Vie.  c.  66, 
mentioned  in  the  next  note. 

'*•*  Since  this  lecture  was  written,  the  law  has  been  altered,  and  the 
32  Hen.  8,  c.  16,  has  been  in  substance  repealed,  so  far  as  relates 
to  the  matter  mentioned  in  the  test.  Bj  the  7  &  8  Vic.  c.  66,  s.  5, 
aliens  being  the  subjects  of  a  friendly  state,  and  residing  in  any  part 
of  the  United  Kingdom,  may,  by  grant,  lease,  demise,  assignment, 
bequest,  representation,  or  otherwise,  take  and  hold  any  lands,  houses, 
or  other  tenements,  for  the  purpose  of  residence  or  occupation,  or  for 
the  purpose  of  any  business,  trade,  or  manufacture,  for  any  term 
not  exceeding  two  years,  as  fully  and  effectually  as  a  natural  born 
subject,  except  so  far  as  relates  to  the  right  of  voting  for  members 
of  parliament.  Under  this  act,  which  does  not  extend  to  the  colonies 
(see  the  10  &  11  Vic.  c.  83,  s.  3),  any  person  born  out  of  the  Queen's 
dominions,  of  a  mother  being  a  natural  born  subject  of  the  United 
Kingdom,  is  capable  of  holding  real  and  personal  property  of  any 
description ;  and  aliens  who  are  the  subjects  of  a  friendly  State  may 
also  hold  every  species  of  personal  property,  except  chattels  real,  as 
effectuall}'-  as  natural  born  subjects  (see  ss.  3  and  4).  This  act 
also  simplifies  the  mode  of  obtaining  naturalization  (see  ss.  6  to  12). 
Denizens  are  aliens  born  who  have  obtained,  ex  donatione  Regis, 
letters  patent  to  make  them  English  subjects.  See  Com.  Dig.  Alien 
(D)  ;  1  Black.  Comm.  374.  Aliens  enemy  cannot  sue  in  our  courts, 
and  contracts  made  with  them  are  invalid.  Bac.  Ab.  Aliens  (D). 
Brandon  v.  Nesbitt,  6  T.  R.  23 ;  Potts  v.  Bell,  8  T.  B.  548 ;  Willi- 
sou  V.  Patteson,  7  Taunt.  439,  (2  E.  C.  L.  R.  436,) ;  and  Alcenius 
V.  Nygren,  24  L.  J.  Q.  B.  19. 

{(i)  For  the  power  of  aliens  (not  naturalized)  to   take,  hold,  trans- 


WHO    MAY    BE    LESSEES.  91 

*Having  considered  who  may  he  the  lessor  or  r*-rj-j 
lessee^  the  next  question  in  order  is  luhat  may  he 
leaded.  This  is  a  part  of  the  subject  upon  which,  how- 
ever, I  do  not  intend  to  dwell ;  because,  though  it  is 
clear  that  leases  for  a  term  of  years  might  be  demised 
of  almost  every  sort  of  tenements,  such,  for  instance,  as 
tithes  or  offices,  that  do  not  concern  the  public  revenue 
or  the  administration  of  justice,"*^  yet  leases  of  this  sort 
of  property  do  not  create  the  relation  of  landlord  and 
tenant  according  to  the  ordinary  acceptation  of  those 
terms  which  *we  are  in  the  habit  of  applying  to  r#-o-| 
the  lessor  and  lessee,  not  of  things  which  lie  in 

^^  The  sale  of  oiEces  which  touch  the  administration  or  execution 
of  justice,  or  the  receipt  of  the  revenue,  is  prohibited  by  the  5  &  (5 
Edw.  6,  c.  16,  and  the  49  Geo.  3,  c.  126.  See  as  to  the  construction 
of  these  acts,  Hopkins  v.  Prescott,  4  C  B.  578,  (56  E.  C.  L.  R.  578,). 


mit  and  assign  real  estate  in  the  United  States,  the  student  is  referred 
to  the  Statute  books  of  the  several  States.  In  most,  if  not  all  of 
them,  it  will  be  found  that  there  is  no  difficulty  in  the  way  of  an 
alien  becoming  a  lessee ;  in  some  of  them.  New  York  for  instance, 
he  must  make  and  file,  in  the  office  of  the  Secretary  of  State,  an  affi- 
davit that  he  is  a  resident  of  the  State  of  New  York,  and  intends  to 
reside  in  and  become  a  citizen  of  the  United  States  as  soon  as  he  can 
be  naturalized,  and  that  he  has  taken  the  necessary  steps  for  that  pur- 
pose ;  having  done  this,  he  has,  for  six  years,  full  power  to  hold  and 
convey  real  estate,  except  that  he  cannot  dispose  of  it  by  will,  or 
make  leases  of  it.  In  Pennsylvania,  down  to  1855,  the  power  of 
aliens,  friends  at  the  time  of  the  purchase,  to  take,  hold,  transmit  and 
assign  real  estate,  not  exceeding  five  thousand  acres  in  amount,  was 
the  same  as  that  of  natural  born  citizens.  A  proviso  to  the  seventh 
section  of  the  fAct  of  26  April,  1855,  Pamph.  Laws,  330,  declares 
"  that  no  alien  shall  hereafter  acquire  and  hold,  either  as  trustee  or 
in  his  own  right,  real  estate  of  a  greater  annual  value  than  is  hereby 
limited  to  be  held  by  a  corporation."  The  corporation  would  seem 
to  be  limited  to  an  income  of  two  thousand  dollars. 


92  LANDLORD    AND    TEX  ANT. 

grant,  to  use  the  technical  phrase  of  the  law,  that  is  to 
say,  are  only  demisable  by  deed,  but  of  those  which  lie, 
to  use  the  legal  phrase,  in  livery, ^^  that  is,  of  lands  and 
houses  which  are  in  contemplation  of  law  part  of  the 
land.  To  demises  therefore  of  this  sort  of  property, 
the  observations  which  I  have  to  make  in  these  Lec- 
tiu'es  will  be  confined.  And  this  brings  me  to  the  last 
of  the  foiu"  heads  connected  with  the  creatiofi  of  the 
tenancy,  that  is  to  say,  the  mode  in  which  it  is  created. 
This  part  of  the  subject,  however,  invohdng  as  it  does 
the  natiu-e  of  leases  for  years,  their  different  species, 
and  the  formalities  required  by  law  in  order  to  their 
due  creation,  is  too  important  a  branch  of  the  subject 
to  be  entered  upon  at  this  period  of  the  evening.  I 
shall  therefore  reserve  it  for  the  next  Lecture.(a) 

'^^  Now,  all  corporeal  tenements  and  hereditaments  are  deemed  to 
lie  in  grant  as  well  as  in  livery,  so  far  as  regards  the  conveyance  of 
the  immediate  freehold.     8  &  9  Vic.  c.  106,  s.  2. 

(o)  By  the  14  §,  1  art.  Constitution  of  New  York,  it  fs  declared  : 
«  no  lease  or  grant  of  agricultural  land  for  a  longer  period  than 
twelve  years,  hereafter  made,  in  which  shall  be  reserved  any  rent  or 
service  of  any  kind,  shall  be  valid." 


MODES  OF  EFFECTING  DEMISES. 


93 


*LECTUIIE    III. 


[*59] 


Points   relating   to   Creation 

OF  Tenancy  (continued) 59 

The  Mode  in  which  Demises  are 

effected 60 

By  Deed,  by  Writing  without 

Seal,  and  by  Parol 60 

Effect  of  the  Statute  of  Frauds, 
and  of  the  8  &  9  Vic.  c. 

106 62 

Effect  upon  Demise   of  Non- 
compliance with  Statute  of 

Frauds 65 

Requisites  to  all  Leases 67 

Proper  "Words  of  Demise 67 

Intention  to  be  looked  to 69 


Difference  between  Leases  and 

Agreements 70 

Stamps 72 

Agreements  for  a  Lease  can- 
not be  by  Parol  only 75 

Usual  Incidents 77 

The  Premises 77 

The  Recitals 78 

The  Habendum 82 

Period  at  which  Term   com- 
mences    83 

Duration  of  Term 84 

Option  to  determine  at  End  of 

a  certain  Period 86 

Who  may  exercise  it 86 


You  will  remember  that,  in  the  last  Lecture,  I 
divided  the  entire  subject  into  four  principal  heads — 
the  first  comprehending  those  points  wJiich  relate  to  the 
creation  of  the  tenancy — the  second,  those  which  occur 
during  its  continuance — the  third,  those  which  relate  to 
its  termination — the  fourth,  those  ivhich  arise  upon  the 
change  of  either  of  the  jMiiies,  whether  upon  the  assign- 
ment of  the  term,  or  of  the  reversion,  or  for  some  other 
reason.  I  then  proceeded  to  consider  the  first  of  these 
heads,  that  comprehending  the  points  which  occur  at 
the  commencement  of  the  tenancy ;  and  this  I  again 
*subdivided  into  four  distinct  parts — the  first,  r#gQ-j 
regarding  the  lessor — the  second,  the  lessee — the 
third,  the  thing  demised — and  the  fourth,  the  mode  in 
which  the  demise  is  effected. 

Of  these  we  disposed  of  three  during  the  last  lecture. 
The  fourth  remains  to  be  considered. 


91  LANDLORD    AND     TENANT. 

Now,  with  regard  to  the  demise,  it  may  be  effected 
in  three  wa^^s ;  it  may  be  either  hy  deed,  or  hy  writmg 
icitliout  deed,  or  icWiout  writing,  that  is,  either  by  mere 
word  of  mouth,  or  by  circumstances  from  which  a  de- 
mise may  be  inferred,  though  the  express  terms  in 
which  it  was  made  do  not  appear. 

Now,  with  regard  to  the  adoption  of  these  different 
modes,  there  is  no  case  in  which  it  is  necessary  that 
the  lease  should  be  by  deed,  except  only  where  the 
thing  demised  is  of  a  nature  incapable  of  being  con- 
veyed otherwise  than  by  deed.^  And  then,  as  a  lease 
is  a  conveyance  of  a  partial  interest,  a  deed  i>;  requisite ; 
for  instance,  where  tithes  are  demised,  they,  being  in- 
corporeal hereditaments,  will  not  pass  without  deed, 
and,  consequently,  a  lease  made  of  them  must  be  by 
deed ;  if  it  be  not  so,  it  is  void.  Nay,  if  a  lease  is 
made  of  tithes  and  lands  at  the  same  time  without 
deed,  the  lessor  cannot  distrain  for  his  rent,  inasmuch 
l-^p,  -,  as  the  lease  is  void  so  far  as  *the  tithes  are  con- 
cerned, and  it  is  impossible  to  say,  that  any 
specific  portion  of  the  rent  is  chargeable  upon  the  land 
only,  Gardiner  t:  WiUiamson,  2  B.  &  Ad.  338  f  (22  E. 
C.  L.  R.  146.)  And  although,  in  common  parlance, 
you  frequently  tallv  of  tithes  being  let  to  the  farmer, 
and  although  such  arrangements  are  common  through- 
out Eno^land,  and  are  constantlv  carried  into  effect 
without  deed,  yet,  in  point  of  fact,  these  species  of 

^  Since  this  lecture  was  written,  a  statutory  exception  to  this 
general  rule  has  been  created.  All  leases  required  hy  laio  to  he  in 
writing  must  now  be  made  by  deed.  See  the  8  &  9  Vic.  c.  106,  s.  3, 
and  post,  p.  62. 

^  See  also  Neale  v.  Mackenzie,  2  Cr.  M.  k  K.  84  ;*  S.  C.  in  error, 
1  M.  &  W.  747*;  Bird  v.  Higglnson,  2  A.  &  E.  696,  (29  E.  C.  L. 
R.  321,) ;  Thomas  v.  Fredericks,  10  Q .  B.  775,  (59  E.  C.  L.  E.  775) ; 
and  Meggison  v.  Lady  Glamis,  7  Exch.  685. 


MODES    OF     EFFECTING    DEMISES.  95 

arrangements  made  without  deed,  by  which  the  tenant 
retains  the  tithes  and  pays  the  clergyman,  or  other 
tithe-o\\aier,  a  yearly  sum,  are  not  leases  in  the  eye  of 
the  law,  but  mere  sales  by  the  tithe-owner  to  the  terre- 
tenant  ;  and  the  proof  of  this  is,  that  if  the  tithe-owner 
find  it  necessary  to  bring  an  action  for  the  stipulated 
sum  he  declares,  not  for  rent,  but  for  tithes  sold  and 
delivered,  just  in  the  same  form  in  which  the  vendor 
of  any  other  sort  of  goods  declares.  In  common  par- 
lance, however,  it  is,  as  I  have  said,  very  usual  to  de- 
nominate such  an  arrangement  a  letting  of  the  tithes^ 
and,  indeed,  it  does  so  far  resemble  a  yearly  tenancy, 
that,  in  the  absence  of  express  stipulation  to  the  con- 
trary, it  requires  half  a  year's  notice  to  put  an  end  to 
it;  see  Goode  v.  Howells,  4  M.  &  W.  198.*  I  have 
just  touched  on  these  points  relative  to  tithes,  as  they 
are  of  very  frequent  practical  occurrence.^ 

*But,  with  regard  to  leases  of  lands  and  r^rcy-i 
houses,  tenancies  of  which  are  the  principal 
subject  of  these  lectures,  they  may  be  by  writing  with- 
out seal  as  well  as  by  deed.*  It  is,  indeed,  frequently 
convenient  to  make  them  by  deed,  because,  by  that 
means,  the  parties  reciprocally  acquire  the  remedy  by 
action  of  covenant  for  the  breach  of  any  stipulations 
contained  in  the  lease.  Writing  without  deed  is,  how- 
ever, frequently  adopted  as  the  means  of  demise.  And, 
at  common  law,  a  lease,  like  any  other  contract,  might 
have  been  made  by  mere  words ;  and,  so  it  might  still, 
were  it  not  for  the  provisions  of  the  Statute  of  Frauds 

3  Since  the  passing  of  the  acts  for  the  commutation  of  tithes  (see 
the  6  &  7  Wm.  4,  c.  71,  and  the  later  acts),  these  arrangements 
cannot  occur. 

"*  Leases  can  now  he  made  by  writing  without  seal  only  when  they 
are  not  required  hy  law  to  he  in  loritiiuj  at  all.  See  the  8  &  9  Vic. 
c.  106,  s.  o,  and  the  next  note. 


96  LANDLORD    AND    TENANT. 

[the  29  Car.  2,  c.  3,  and  of  the  8  «&  9  Vic.  c.  106.^ 

T-^no-,    The  first  section  of  the  Statute  of  Frauds  *enacts, 

"  That  all  leases,  estates,  interests,  of  freehold, 

*  The  8  &  9  Vic.  c.  106,  s.  3,  enacts,  "  that  a  feoffment  made  after 
the  first  day  of  October,  18t5,  other  than  a  feoffment  made  under  a 
custom  by  an  infant,  shall  be  void  at  law,  unless  evidenced  by  deed ; 
and  that  a  partition,  and  an  exchange  of  any  tenements  or  heredita- 
ments, not  being  copyhold,  and  a  lease  required  hy  law  to  he  in 
%criting,  of  any  tenements  or  hereditaments,  and  an  assignment  of  a 
chattel  interest,  not  being  copyhold,  in  any  tenements  or  heredita- 
ments, and  a  surrender  in  Writing  of  an  interest  in  any  tenements  or 
hereditaments,  not  being  a  copyhold  interest,  and  not  being  an 
interest  which  might  by  law  have  been  created  without  writing,  made 
after  the  first  day  of  October,  1845,  shall  also  he  void  at  laio  unless 
made  hy  deed."  It  will  be  observed  that  this  section  relates  only  to 
leases;  mere  agreements  for  a  lease  are  not  affected  by  it;  and  the 
leases  upon  which  it  operates  are  made  void  at  laio  only.  It  is  not 
clear  whether,  since  this  statute,  a  lease  in  writing  which  purports  to 
create  a  term  exceeding  three  years,  and  which  is  not  under  seal,  is 
to  be  deemed  wholly  void  at  law  as  a  contract,  so  as  to  render  all  the 
stipulations  contained  in  the  instrument,  and  relating  to  the  demise, 
incapable  of  being  enforced,  or  whether  the  operation  of  the  writing 
as  an  actual  demise  only  is  destroyed  by  the  act.  If  the  former  of 
these  constructions  is  correct  (and  it  is  difiicult  to  suppose  that  it  was 
intended  to  invalidate  that  portion  of  the  instrument  which  purports 
to  create  an  actual  demise,  and  yet  to  leave  in  force  the  other  terms 
of  it,  which  have  reference  to  the  demise,  and  which  are  framed  on 
the  supposition  of  its  being  valid),  a  person  with  whom  a  mere  agree- 
ment for  a  lease  has  been  made,  may  be,  since  the  statute,  in  a  better 
position  than  one  who  has  obtained  a  contract  not  under  seal,  which 
is  intended  to  operate  as  an  actual  lease,  exceeding  three  years.  It 
appears,  however,  to  be  clear  that  leases,  invalid  under  this  act,  have 
suflBcient  force  to  regulate  the  terms  of  a  yearly  tenancy  resulting 
from  payment  of  rent  by  the  intended  tenant,  and  that  he  becomes 
in  this  case,  as  in  the  analogous  case  of  an  occupation  under  an 
agreement  which  is  void  by  the  Statute  of  Frauds,  tenant  from  year 
to  year  upon  such  of  the  terms  of  the  writing  as  are  applicable  to  a 
yearly  tenancy.     See  the  cases  cited  ante,  p.  22,  note  ^'',  and  Tress  v. 


MODES  OF  EFFECTING  DEMISES.      97 

or  terms  of  years,  or  any  uncertain  interest  of,  in,  to,  or 
out  of  any  messuages,  manors,  lands,  tenements,  or 
hereditaments,  made  or  created  *by  livery  and  r*^^-, 
seisin  only,  or  by  parol,  and  not  put  in  writing, 
and  signed  by  the  parties  so  making  or  creating  the 
same,  or  their  agents  thereunto  lawfully  authorized  hy 
W7'iting,  shall  have  the  force  and  effect  of  leases  or 
estates  at  will  only."  The  second  section  excepts  "  all 
leases,  not  exceeding  the  term  of  three  years  from  the 
making  thereof,  whereupon  the  rent  reserved  to  the 
landlord,  during  such  term,  shall  amount  unto  two- 
thirds  parts,  at  the  least,  of  the  full  improved  value  of 
the  thing  demised,  "(a) 

Savage,  23  L.  J.  Q.  B.  839.  In  Lee  v.  Smith,  9  Exeli.  662,  a  per- 
son became  the  tenant  of  premises  under  a  written  agreement  made 
since  this  act  came  into  operation,  but  not  under  seal.  The  term 
mentioned  in  it  exceeded  three  years,  and  the  rent  was  made  payable 
quarterly  in  advance.  The  tenant  paid  several  quarters'  rent,  not 
however  in  advance,  but  the  receipts  which  were  given,  described  the 
payments  as  being  made  in  advance.  It  was  held  that  a  tenancy 
from  year  to  year  had  been  created,  and  that  although  the  agreement 
was  void  under  the  statute,  the  receipts  were  evidence  that  the  rent 
was  payable  in  advance.  A  provision  requiring  all  leases  in  writing 
to  be  by  deed  was  contained  in  an  earlier  act.  See  the  7  &  8  Vic. 
c.  76,  s.  4.  But  this  statute,  which  was  obscurely  framed,  was 
repealed,  after  being  in  force  for  less  than  a  year,  by  the  8  &  9  Vic.  c. 
106.  See  as  to  its  construction.  Burton  v.  Keevel,  16  M,  &  W.  307,* 
and  Doe  d.  Davenish  v.  Moffat,  15  Q.  B.  257,  (69  E.  C.  L.  R.  257,) . 

(a)  The  statute  of  Frauds,  with  some  modifications,  has  been 
generally  adopted  in  this  country.  In  New  York,  the  exception 
in  favor  of  parol  leases,  is  confined  to  terms  not  exceeding  one 
year;  and  every  contract  for  leasing  for  a  longer  period  than  one 
year,  is  declared  void,  unless  the  contract,  or  some  note  or  memo- 
randum thereof,  expressing  the  consideration,  be  in  writing,  and  be 
subscribed  by  the  party  by  whom  the  lease  or  sale  is  to  be  made. 
Kev.  Stat.  N.  Y.  Ch.  VII.,  Title  1,  §  6,  7  &  8.     And  a  parol  lease 

7 


98  LANDLORD    AND     TENANT. 

These  two  sections,  you  will  observe,  render  a  writing 
necessary  whenever  the  term  demised  is  to  extend  for 
more  than  three  years  from  the  time  of  making ;  and 

for  one  year,  to  commence  in  futuro,  is  void.  Crosswell  v.  Crane,  7 
Barb.  Sub.  Ct.  191.  The  revised  statutes  of  Massachusetts  also 
reduce  the  time  to  one  year.  Three  years  is  the  rule  in  Pennsyl- 
vania, and  the  statute  of  that  State  does  not  avoid  parol  leases 
for  a  longer  period,  but  declares  them  leases  at  will  only.  Act  21 
March,  1772,  §  1  &  2 ;  1  Smith,  389.  So  in  New  Jersey,  Lester  v. 
Bartlett,  2  Carter,  628. 

In  Pennsylvania,  any  note  in  writing,  whether  sealed  or  not,  is 
sufficient  if  it  shows  a  contract,  and  it  is  enough  if  it  be  signed  by 
the  party  to  be  charged.  Colt  v.  Selden,  5  Watts,  528 ;  M'Farson's 
Appeal,  1  Jones,  503,  510;  Lowry  v.  Mehaffy,  10  Watts,  387;  but 
see  Wilson  v.  Clark,  1  W.  &  S.  554.  In  this  case  there  was  a  parol 
agreement  for  the  sale  of  land.  The  vendor  tendered  a  deed,  the 
vendee  refused  compliance,  the  vendor  brought  an  action  for  the  pur- 
chase-money— held  that  he  could  not  recover,  that  in  Pennsylvania 
this  was  not  a  case  for  specific  performance,  though  it  might  be  for 
damages  for  the  breach  of  the  contract.  See  the  opinion  which  was 
given  by  the  late  C.  J.  Gibson.  See  contra  Clason  v.  Bailey,  14  John. 
484,  opinion  by  Kent;  and  Parrill  v.  M'Kiuley,  9  Gratt.  1.  And  it 
has  been  held,  where  a  tenant  went  into  possession  and  paid  rent  for 
three  years  under  a  parol  lease  for  five  years,  and  was  then  evicted, 
that  he  could  maintain  an  action  for  damages,  on  the  implied  covenant 
for  quiet  enjoyment.  Maule  v.  Ashmead,  8  Harris,  482.  See  Pugh 
V.  Good,  3  W.  &  S.  57,  for  observations  of  C.  J.  Gibson  on  the  Act  of 
1772.  It  was  held  in  that  case,  that  delivery  of  possession  of  land,  in 
pursuance  of  a  parol  contract,  amounted  to  part  performance,  and  that 
nothing  could  afford  a  more  definite  measure  of  part  performance,  or 
one  so  little  susceptible  of  perjury,  as  the  notorious  and  unequivocal 
act  of  parting  with  the  possession — and  that  under  such  circumstances 
the  vendee  as  well  as  the  vendor,  might  insist  on  specific  execution  of 
the  contract.  The  fourth  section  of  the  English  Statute  of  Frauds 
is  omitted  in  Pennsylvania.  Where  there  is  no  part  performance, 
and  though  an  estate  may  not  be  created  for  want  of  a  writing, 
an  action  will  nevertheless  lie  for  the  breach  of  the  parol  contract, 
but  in  such  case  the  jury  will  not  be  allowed  to  enforce  the  contract 


MODES  OF  EFFECTING  DEMISES.      99 

accordingly  it  was  held  in  Ryley  v.  Hicks,  1  Str,  651, 
that  a  parol  lease  for  a  year  and  a  half,  to  commence 
at  the  distance  of  a  year  from  the  time  of  the  making 
of  it,  is  valid,  since  it  would  terminate  within  three 
years  from  that  time  :  although  a  lease  for  three  years 
to  commence  at  a  future  day  would  be  bad,  since  its 
termination  would  not  fall  within  the  three  years, ''(a) 

Now  with  regard  to  the  effect  of  this  section 
*upon  a  ^arol  lease  not  authorized  by  its  provi-  r#/-r-i 
sions,  you  will  observe  that  it  is  not  enacted 
that  such  a  lease  shall  be  void,  but  that  it  shall  have 
the  force  and  effect  of  a  lease  at  will  only.  Now  I 
have  already  pointed  out  to  you,  in  the  first  lecture,^  in 

6  In  the  same  way  it  has  been  held,  under  s.  4  of  the  Statute  of 
Frauds,  which  requires  agreements  "not  to  be  performed  within  the 
space  of  one  year  from  the  making  thereof,"  to  be  in  writing,  that  a 
contract  for  a  year's  service  to  begin  at  a  day  subsequent  to  the 
making  of  the  contract,  must  be  in  writing.  Bracegirdle  v.  Heald, 
1  B.  &  A.  722 ;  Snelling  v.  Lord  Huntingfield,  1  Cr.  M.  &  R.  20.* 
See  also  Lord  Bolton  v.  Tomlin,  5  A.  &  E.  856,  (31  E.  C.  L.  R.  855,). 

7  Ante,  p.  20. 

by  damages  given  as  a  penalty.  Irvine  v.  Bull,  4  Watts,  287 ; 
George  v.  Bartoner,  7  Watts,  530;  Fox  v.  Heflfner,  1  W.  &  S.  375. 
It  is  not  always  necessary  that  the  rescission  of  a  lease  should  be  in 
writing.  Greiders'  Appeal,  5  Barr,  422.  When  possession  has  been 
given  under  a  parol  lease,  and  there  has  been  part  performance  by  the 
lessee,  it  will  take  the  case  out  of  the  statute  in  Ohio.  Wilber  v. 
Paine,  1  Hamm.  251.  See  contra,  Kelly  v.  Walster,  10  Eng.  Law 
&  Eq.  Rep.,  517;  Cocking  v.  Ward,  1  Com.  Bench,  858,  (50  E.  C. 
*L.  R.  858,).  And  generally  the  writing  need  not  be  under  seal. 
Clark  V.  Gilson,  2  App.  18  ;  Blood  v.  Hardy,  3'  Shep.  61 ;  Mayberry 
V.  Johnson,  3  Green,  116;  Colt  v.  Selden,  5  Watts,  528;  Piuckney 
V.  Hagadorn,  1  Duer,  89.  Whether  note  by  an  auctioneer  is  suffi- 
cient. See  Pinckney  v.  Hagadorn,  1  Duer,  89;  Miller  v.  Pelletier,  4 
Edw.  Ch.  102;  Vielie  v.  Osgood,  8  Barb.  Sup.  Ct.  R.  130. 
{a)  Croswell  v.  Crane,  7  Barb.  Sup.  Ct.  191, 


100  LANDLORD    AND    TENANT. 

what  manner  tenancies  at  will  gave  birth  to  tenancies 
from  year  to  year ;  and  how  the  Courts,  anxious  to 
favor  the  creation  of  the  more  convenient  sort  of 
tenancy,  imply  from  the  payment  of  a  yearly  rent  by  a 
tenant  at  will,  an  agreement  between  him  and  his 
lessor  to  create  a  yearly  tenancy.  The  same  doctrine 
applies  to  parol  leases  void  by  the  Statute  of  Frauds  ; 
that  Statute  converts  them  into  leases  at  will,  and  then, 
like  other  leases  at  will,  they  are  capable  of  being 
turned  into  tenancies  from  year  to  year  by  a  payment 
of  rent,  or  any  other  circumstance  denoting  the  inten- 
tion of  the  parties  that  they  shall  be  so  considered. 
See  Clayton  v.  Blakey,  8  T.  E,.  3  ;  Doe  d.  Rigge  v. 
BeU,  5  T.  E.  471 ;  Richardson  v.  GifFord,  1  A.  &  E. 
52,  (28  E.  C.  L.  R.  49,) ;  Beale  v.  Sanders,  3  Bing.  N. 
C.  850,  (32  E.  C.  L.  R.  390,).  V) 

In  cases  to  which  the  first  section  of  the  Statute  of 
Frauds  applies,  it  is  not,  you  wiU  observe,  sufficient 
that  the  demise  be  in  wiiting.  It  must  be  in  writing 
signed  in  the  manner  directed  by  the  Act,  and  that  is, 
either  by  the  lessor  himself,  or  by  some  person 
r*fin  ^^i^thorized  by  him  in  writing.^  And  this  *is  one 
of  the  few  cases  in  which  writing  is  necessary 

8  See  Berry  v.  Liadley,  3   M.  &  Or.  498,  (42  E.  C.  L.  E.  263,) ; 
and  ante,  p.  22,  note  ^^. 

^  This  provision  of  the  Statute  of  Frauds  appears  to  have  been 
rendered  nugatory  by  the  8  &  9  Vict.  c.  106.  For,  as  has  been 
already  mentioned,  that  act  makes  it  necessary  that  those  leases  which 
are  required  by  the  Statute  of  Frauds  to  be  in  writing  only,  should* 
also  be  made  by  deed ;  and  it  is  a  rule  of  law  that  no  one  can  execute 
a  deed  as  agent  for  another,  unless  the  authority  to  do  so  is  given 
him  by  deed.  Harrison  v.  Jackson,  7  T.  R.  207  ;  Berkeley  v.  Hardy, 
5  B.  &  C.  355,  (11  E.  C.  L.  K.  495,). 

(a)   Drake  v.  Newton,  3  Zabr.  111. 


MODES  OF  EFFECTING  DEMISES.    101 

to  create  an  agency.  The  provisions  of  the  fourth  and 
of  the  seventeenth  sections  of  the  same  Statute  vary 
from  those  of  the  first  in  this  respect,  for,  in  neither  of 
them,  is  the  agent's  appointment  required  to  be  a 
written  one. 

Now  with  regard  to  leases  merely  by  parol ;  as  they 
might  have  been  made  at  common  law  to  any  extent, 
so  now  they  may  be  made  in  any  case  in  which  they 
are  not  expressly  prohibited.  And  even  in  those  cases 
in  which  they  are  invalidated  by  the  Statute  of  Frauds, 
although  they  do  not  operate  so  as  to  create  a  term ; 
yet,  if  they  contain  any  special  provisions  compatible 
with  the  nature  of  a  tenancy  from  year  to  year,  those 
provisions  are  considered  as  engrafted  upon  the  yearly 
tenancy  which  arises  on  payment  of  rent,  for  to  use  the 
words  of  the  Court  in  Lord  Bolton  v.  Tomlin,  5  A.  & 
E.  856,  31  E.  C.  L.  R.  855,  "  it  is  absurd  to  say  that 
a  parol  lease  shall  be  good,  and  yet  that  it  cannot  con- 
tain any  special  stipulations  or  agreements."  (See  also 
Richardson  v.  GifFord,  1  A.  &  E.  52,  28  E.  C.  L.  R. 
49;  Beale  v.  Sanders,  3  Ring.  N.  C.  850,  32  E.  C.  L. 
R.  390,).^<^ 

Now,  these  being  the  three  modes  in  which  a  lease 
may  be  created,  namely  hjdeed;  [in  those  *cases  r*/-'^-] 
in  which  it  is  not  prohibited  by  the  8  &  9  Vict. 
c.  106;]  by  loriting  witJiout  deed;  and  in  those  cases  in 
which  the  Statute  of  Frauds  permits  it,  without  writing  ; 
it  remains  to  be  seen,  what  are  the  component  parts  of 
such  a  contract.  Now  these  will  of  course  vary  ex- 
tremely, according  to  the  nature  of  the  subject-matter 
of  demise,  the  customs  of  the  part  of  the  country  in 
which  it  is  situated,  and  a  variety  of  other  circum- 
stances which  render  special  terms  and  stipulations 

">  See  Berry  v.  Lindley,  3  M.  &  Gr.  498,  (42  E.  C.  L.  R.  263,) ; 
and  the  cases  cited  pos^,  p.  73,  note  '^ 


102  LANDLORD    AND    TENANT. 

necessary.  Upon  those  terms  which  are  most  usually 
introduced  into  leases,  I  shall  have  something  presently 
to  say;  but  first  I  Avill  observe,  that  there  are  four  cir- 
cumstances which  every  lease,  be  it  by  deed,  by  writing, 
or  by  parol,  must  possess.  These  are,  first,  a  lessor ; 
secondly,  a  lessee;  thirdly,  a  subject-matter  capahle  of 
being  demised  ;  and  fourtlily,  sufficient  words  of  demise. 
Now  with  regard  to  the  capacity  of  the  lessor,  the 
capacity  of  the  lessee,  and  the  subject-matter  of  the 
demise,  I  have  akeady  made  such  observations  as  I 
thought  necessary  in  the  last  Lecture ;  it  remains,  how- 
ever, to  observe  upon  the  last  essential  to  a  lease,  I 
mean  the  rule  that  there  must  be  proper  and  sufficient 
words  of  demise. 

The  ordinary  and  most  formal  words  of  demise  are 

r*f  o-i    demise^  grants  lea^e^  and  to  farm  let  ;^^  *but  as  is 

stated  in  Bacon's  Abridgment,  tit.  Leases  (K), 

it  may  be  laid  down  as  a  rule,  that  "  whatever  words 

^1  By  the  8  &  9  Vict.  c.  124,  (an  act  to  facilitate  the  granting  of 
certain  leases),  a  short  statutory  form  of  lease  is  given,  which  is 
applicable  to  demises  of  lands  and  tenements.  The  covenants  and 
other  portions  of  the  lease  are  very  shortly  expressed,  and  the  statute 
enacts  in  substance,  that  in  all  leases  made  according  to  this  form, 
or  expressed  to  be  made  in  pursuance  of  the  act,  the  short  statutory 
forms  shall  have  the  same  meaning  and  effect  as  the  longer  forms 
generally  inserted  in  instruments  of  this  description.  Very  little 
use  has,  however,  been  made  in  practice  of  this  statute.  The  8  &  9 
Vict.  c.  106,  s.  5,  provides  that  in  all  deeds  executed  after  the  1st  of 
October,  18-45,  the  words  "'give'  or  'grant'  shall  not  imply  any 
covenant  in  law  in  respect  of  any  tenements  or  hereditaments, 
except  so  far  as  the  word  'give'  or  the  word  'grant'  may  by  force 
of  any  act  of  parliament  imply  a  covenant."  This  exception  relates 
to  railway  acts,  and  other  acts  of  a  like  description,  which  often  pro- 
vide that  in  the  conveyances  authorised  by  these  statutes,  covenants 
for  title,  quiet  enjoyment,  and  further  assurance  shall  be  implied 
from  the  use  of  the  word  "  grant." 


REQUISITES    TO    ALL    LEASES.  103 

are  sufficient  to  explain  the  intent  of  the  parties,  that 
the  one  shall  divest  himself  of  the  possession  and  the 
other  come  into  it  for  a  determinate  time ;  such  words, 
whether  they  run  in  the  form  of  a  license,  covenant,  or 
agreement,  are  of  themselves  sufficient,  and  will  in 
construction  of  law  amount  to  a  lease  for  years,  as 
effectually  as  if  the  most  proper  and  authentic  words 
had  been  made  use  of  for  that  purpose."  And  while 
stating  this  rule  in  the  words  of  Bacon's  Abridgment, 
I  may  as  well  embrace  this  opportunity  of  mentioning 
that  the  title  Leases  in  that  work,  which  was  written 
by  Lord  Chief  Baron  Gilbert,  is  one  of  the  greatest 
authorities  upon  the  law  of  landlord  and  tenant,  and  is 
always  treated  by  our  Courts  with  the  very  highest 
respect.-^'^(a) 

To  illustrate  this  rule  by  an  example  or  two,  there  is 
an  old  case  reported  in  Sir  Francis  Moore,  *pla-  r%nQ-\ 
citum  31,  in  which  the    owner   of  land  said, 

^2  See  the  judgments  in  Neale  v.  Mackenzie,  1  M.  &  W.  759  ;* 
and  Wilkinson  v.  Hall,  8  Bing.  N.  C  532,  (32  E.  C.  L.  R.  248,). 

(a\  No  particular  form  of  words  is  necessary  to  constitute  the  rela- 
tion of  landlord  and  tenant;  it  is  sufficient  if  it  appear  to  have  been 
the  intention  of  one  to  dispossess  himself  of  the  premises,  and  the 
other  to  enter  under  him  for  a  determinate  period  pursuant  to  an 
agreement.  Watson  v.  O'Hern,  6  Watts,  362 ;  Moshier  v.  Eeding, 
3  Fairf.  478. 

The  following  writing,  signed  by  A.,  was  delivered  by  him  to  B., 
"Received  of  B.,  three  dollars  and  fifty  cents,  for  the  rent  of  my 
brick  house  in,  &c.,  for  one  month,  with  the  privilege  of  keeping  it 
six  months  at  the  same  rate.  No.  91  or  95.  ^December  1st,  1853." 
Held,  that  this  was  a  lease  of  the  premises  given  upon  an  executed 
consideration  by  A.  to  B.,  for  one  month  from  the  date,  and  from 
month  to  month  for  five  months  longer,  if  B.  should  pay  A.  at  the 
commencement  of  each  month,  three  dollars  and  fifty  cents  for  rent. 
Munson  v.  Wray,  7  Blackf  403. 


104  LANDLORD    AND     TENANT. 

"you  sliall  have  a  lease  for  twenty-one  years  of  my 
land,  paying  teii  shillings  yearly  rent;  make  a  lease  in 
writing  and  I  will  seal  it."  This  was  held  to  be  a 
sufficient  lease  for  twenty-one  years,  for  the  Judges 
considered  the  intention  to  be  that  the  lessee  should 
have  possession  of  the  land  immediately,  and  that  the 
promise  to  seal  a  written  lease  was  only  for  further 
assurance.  This  case,  you  will  remember,  was  before 
the  Statute  of  Frauds,  otherwise  the  lease  for  twenty- 
one  years  woidd  not  have  been  good  by  j^cirol. 

So  in  Baxter  v.  Browne,  2  W.  Bl.  973,  Abrahall  and 
Lloyd  signed  an  agreement  with  Bro^vne,  worded  that 
they  agreed  "  with  all  convenient  speed  to  grant  him 
a  lease  of,  and  they  did  thereby  let  and  set  to  him," 
the  premises  for  twenty-one  years,  at  £290  per  annum, 
payable  half-yearly  to  the  lessors.  The  lease  to  con- 
tain the  usual  covenants.^^  The  Court  said,  "  this  is  a 
good  lease  in  jycesenti,  with  an  agreement  to  execute  a 
more  perfect  and  formal  lease  in  future." 

,  Upon  the  other  hand,  it  is  laid  down  in  the  same 
section  of  Bacon's  Abridgment,  to  which  I  have 
already  referred,  that,  even  if  the  most  proper  words 
are  made  use  of  whereby  to  describe  and  pass  a  present 
lease  for  years,  yet  if,  upon  the  whole  instrument,  there 
r*^()-|  appears  no  such  intent,  *but  that  they  are  only 
preparatory  and  relative  to  a  future  lease  to  be 
made,  the  law  will  rather  do  violence  to  the  words  than 
break  through  the  intent  of  the  parties. 

Thus  in  Roe  v.  Ashburner,  5  T.  R.  163,  where  the 
words  were  "  articles  of  agreement  between  T.  S.  and 
D.  J.,  entered  into  in  regard  to  his  fidling  mills,  dry- 
salting  mills,  &c.,  that  the  said  mills,  &c.,  he  sliall 
enjoy ;  and  I  engage  to  give  him  a  lease  in,  for  the 

^^  Moreover,  in  the  agreement  in  this  case,  the  words  "this  demise" 
occurred.     See  the  case. 


REQUISITES    TO    ALL    LEASES.  105 

term  of  thirty-one  years  from  Whitsuntide,  1784,  at  a 
clear  yearly  rent  of  £100,"  the  instrument  was  held  to 
be  an  agreement  only,  and  Lord  Kenyon  remarked 
that  the  words  "  he  shall  enjoy,"  would  have  been 
sufficient  words  of  demise,  but  that  the  following  words 
showed  that  it  was  the  intent  of  the  parties  that 
there  should  be  another  instrument  to  pass  the  legal 
interest.^* 

There  is,  perhaps,  no  question  which  occurs  more 
frequently  in  practice  than  that  which  arises  when  it 
becomes  necessary  to  decide  within  which  of  these  two 
rules  a  particular  case  falls.  I  mean  whether  looking 
as  we  must  in  every  such  case  do,  to  the  intent  of  the 
parties,  a  particular  instrument  is  to  be  construed  as  a 
lease  or  as  an  agreement  for  one.  It  is  a  question 
which  it  so  frequently  becomes  practically  necessary  to 
solve,  that  a  few  hours  cannot  be  better  employed  than 
in  perusing  the  chief  cases  that  have  lately  been  de- 
cided on  the  subject.  They  are  Dunk  v.  Hunter,  5  B. 
&  A.  322,  (7  E.  C.  L.  R.  115,) ;  Pinero  v.  *Jud-  ^^^^ 
son,  6  Bing.  206,  (19  E.  C.  L.  H.  100,);  Stan-  *-  ^ 
iforth  V.  Fox,  7  Bing.  590,  (20  E.  C.  L.  R.  264,); 
Doe  d.  Pearson  v.  Ries,  8  Bing.  178,  (21  E.  C.  L.  R. 
496,) ;  Warman  v.  Faithful,  5"b.  &  Ad.  1047,  (27  E. 
C.  L.  E.  439,);  Hayward  v.  HasweU,  6  A.  &  E.  265, 
(33  E.  C.  L.  B.  79,);  Chapman  v.  Towner,  6  M.  &  W. 
100  ;*  Rawson  v.  Eicke,  7  A.  &  E.  451,  (34  E.  C.  L. 
B.  142,).^^  The  reason  I  have  cited  so  *many  r*^9-i 
of  these  cases  is  that,  without  perusing  a  good 

"  See  the  next  note. 

"  See  also  Chapman  v.  Bluck,  4  Bing.  N.  C.  187,  (33  E.  C.  L. 
R.  817,) ;  and  Jones  v.  Reynolds,  1  Q.  B.  506,  (41  E.  C.  L.  R.  646,). 
In  the  latter  of  these  cases  several  letters  had  passed  between  the 
plaintiff  and  the  defendant  as  to  the  letting  of  some  iron  ores  and  lands 
belonging  to  the  plaintiff.  Some  expressions  were  used  in  the  plaintiff's 


106  LANDLORD    AND    TENANT. 

many  of  tliem,  it  is  quite  impossible  to  become  at  all 
familiar  with  the  spirit  in  which  the  Courts  are  in  the 

letters  which  seemed  to  refer  to  his  having  actually  leased  the  iron 
ores;  but  it  appeared,  upon  the  correspondence,  that  the  term  was 
not  to  commence  until  a  future  period,  and  that  the  proportions  in 
which  the  iron  ores  were  to  be  worked  were  to  be  ascertained  by  a 
third  person.  It  was  held  that  no  tenancy  had  been  created.  Mr. 
Justice  Wightman  said  :  "  I  agree  that  if  an  instrument  be  in  other 
respects  a  present  demise,  a  stipulation  in  it  for  a  future  lease  will 
not  reduce  it  to  a  mere  agreement.  Lawrence  J.,  so  puts  it  in 
Morgan  d.  Dowding  v.  Bissell,  3  Taunt.  65,  68  ;  and  he  said,  in  that 
case,  at  Nisi  Prius  (3  Taunt.  67),  <■  where  there  is  an  instrument  by 
which  it  appears  that  one  party  is  to  give  possession  and  the  other 
take  it,  that  is  a  lease,  unless  it  can  be  collected  from  the  instrument 
itself  that  it  is  an  agreement  only  for  a  lease  to  be  afterwards  made.' 
Here  no  present  demise  appears ;  the  term  is  to  begin  from  the 
ensuing  24th  of  June;  and  before  an  actual  demise,  there  were 
matters  to  be  ascertained,  without  which  the  terms  of  holding  would 
not  be  perfectly  complete."  See  also  Eagleton  v.  Gutteridge,  11  M. 
&  W.  465:*  Gore  v.  Lloyd,  12  M.  &  W.  463  ;*  and  Doe  d.  Wood 
V.  Clarke,  7  Q.  B.  211,  (53  E.  C.  L.  R.  211,).  In  the  last  of  these 
cases  a  proposal  in  writing  for  the  letting  of  some  farms  mentioned 
the  rent,  the  length  of  the  term,  and  some  other  particulars  of  the 
proposed  tenancy,  but  not  the  period  at  which  the  tenancy  was  to 
begin.  At  the  foot  of  the  proposal  the  following  words  were  written, 
and  were  signed  by  the  party  intending  to  take  the  premises  and  by 
the  agent  of  the  intended  landlord.  "  June  3rd,  1835.  Agreed  to 
the  above  rent,  provided  the  house,  cottage,  and  buildings  are  put 
into  good  tenantable  repair,  on  a  plan  to  be  mutually  determined 
upon,  and  finally  settled  within  one  month  from  the  above  date." 
It  was  held  upon  these  facts,  that  there  was  no  present  demise,  since 
the  terms  were  to  take  effect  only  on  the  performance  of  a  condition, 
and  it  was  not  ascertained  when  the  tenancy  was  to  commence. 
Strong  circumstances  of  inconvenience  which  appear  on  the  instrument, 
if  it  be  construed  as  a  lease,  are  held  to  indicate  the  intention  of  the 
parties  that  it  should  operate  as  an  agreement  only.  See  the  judgment 
in  Doe  d.  Morgan  v.  Powell,  7  M.  &  Gr.  990,  (49  E.  C.  L.  R.  990,). 
Since  the  8  &  9  Vict.  c.  106,  the  question  whether  an  instrument  oper- 


REQUISITES    TO    ALL    LEASES.  107 

habit  of  looking  at  instruments  of  this  sort,  and  with 
the  somewhat  minute  cliiFerences  on  which  these  ques- 
tions occasionally  turn.  There  are  several  considera- 
tions which  often  render  it  important  to  determine 
whether  an  instrument  operates  as  a  lease  or  an  agree- 
ment for  one.(tf)  In  the  first  place,  the  stamp  imposed 
on  the  two  instruments  is  different.^''     In  the  second 

ates  as  an  actual  demise,  or  merely  as  an  agreement  to  demise,  will  pro- 
bably occur  less  often  in  practice.  For,  as  has  been  observed,  that  act 
prevents  any  writing  not  wider  seal  from  operating  as  a  lease  where 
by  law  a  writing  is  necessary  to  constitute  a  lease.  It  will,  however, 
be  necessary  to  refer  to  the  principle  of  the  cases  cited  in  the  text  in 
order  to  ascertain  whether  any  given  instrument  is  rendered  void  by 
this  act  or  not ;  since  mere  agreements  for  a  lease  are  not  aflfected  by 
it,  and  the  question  may  still  arise  in  cases  in  which,  although  the 
common  law  power  of  demising  by  parol  still  exists,  the  parties  have 
unnecessarily  entered  into  an  agreement  in  writing.  The  rules  laid 
down  in  the  text  may  also  be  occasionally  applicable  to  the  construc- 
tion of  badly  framed  deeds,  the  operation  of  which  as  demises  or  as 
agreements  to  demise  is  doubtful ;  for,  although  the  statute,  where 
it  applies,  prevents  any  instrument  which  is  not  a  deed  from  opera- 
ting as  a  demise,  it  obviously  will  not  make  any  deed  take  effect 
as  an  instrument  of  present  demise  when  it  is  not  properly  framed 
for  that  purpose. 

1^  The  stamp  upon  ordinary  agreements  is  now  2s.  6^.  See  the 
13  &  14  Vic.  c.  97.  A  document  may  require  a  stamp,  both  as  an 
agreement  and  a  lease.  Lovelock  v.  Franklyn,  8  Q.  B.  371,  (55  E. 
C.  L.  E,  371,).  Glen  v.  Dungey,  4  Exch.  61,  is  a  late  case  in  which 
a  question  arose  as  to  whether  an  instrument  required  a  lease  stamp. 
The  stamps  upon  leases  at  a  yearly  rent,  and  upon  leases  for  any 

(a)  An  agreement  for  a  lease  will  be  construed  to  be  a  present 
demise,  if  no  future  formal  lease  be  contemplated,  especially  if 
possession  be  taken  under  it.  Jenkins  v.  Eldridge,  3  Story,  325. 
A  written  authority  from  one  to  another  to  give  a  lease  to  a  third 
person,  on  terms  previously  offered  in  writing  by  such  third  person, 
is  not  in  itself  a  lease.     Davis  v.  Thompson,  1  Shep.  209. 


108  LANDLORD    AND    TENANT. 

r*7Q-i  place,  *tlie  instrument,  if  it  be  construed  as  a 
lease,  passes  an  estate  in  the  land  to  the  lessee, 
and  enables  the  lessor  to  distrain  for  the  rent  reserved ; 
whereas,  construed  as  an  agreement,  it  passes  no  estate 
at  law^  nor  can  the  intended  lessor  distrain,  unless  in- 
deed the  intended  lessee,  after  his  entry  upon  the  land, 
pay  rent  according  to  the  terms  of  the  agreement.  If 
he  do,  he  becomes  at  law  a  yearly  tenant  on  those 
terms,  so  far  as  they  are  consistent  with  that  sort  of 
tenancy ;  and  then  he  is  at  law  entitled  to  a  notice  to 
quit.  In  equity,  indeed,  he  always  has  a  right  to  a 
specific  performance  of  his  agreement  by  the  execution 
of  a  lease  for  the  term  agreed  on.  You  will  find  these 
points  illustrated  by  Regnart  v.  Porter,  7  Bing.  451  ; 
(20  E.  C.  L.  R.  204,) ;  and  Mann  v.  Lovejoy,  R.  &  M. 
j-*^^-,  355 ;  (21  E.  C.  L.  R.  765,).^'  There  is  another 
*singular  distinction  between  a  lease  and  an 

period  less  than  a  year,  are  regulated  by  the  13  &  14  Vict.  c.  97, 
and  the  17  &  18  Viet.  c.  83,  s.  23.  See  also  the  schedule  to  the 
last-mentioned  act  for  the  stamps  upon  leases  at  a  yearly  rent  for 
terms  exceeding  thirty-five  years. 

^^  See  also  Eiseley  v.  Ryle,  11  M.  &  W.  16,*  and  Thomson  v. 
Amey,  12  A.  &  E.  476,  (40  E.  C.  L.  R.  239,).  In  the  latter  of 
these  cases  an  agreement  made  between  the  plaintifi"  and  the  defend- 
ant stipulated  that  the  plaintiff  would  grant  a  lease  of  a  farm  to  the 
defendant  for  a  term  of  years,  and  the  lease  was  to  contain  a  covenant, 
among  others,  not  to  take  successive  crops  of  corn,  and  a  condition  of 
re-entry  upon  the  non-performance  of  any  of  the  covenants.  The 
defendant  entered  into  possession  at  the  time  fixed  by  the  agreement 
for  the  commencement  of  the  term,  and  continued  to  hold  and  pay 
rent  until  the  action  was  brought ;  but  no  further  lease  was  ever 
executed.  It  was  held  that  the  defendant  had  become  tenant  from 
year  to  year,  subject  to  the  condition  above  mentioned.  Mr.  Justice 
Patteson,  in  delivering  judgment,  said,  "It  is  said  that  a  covenant 
respecting  the  rotation  of  crops  cannot  be  engrafted  on  a  yearly 
tenancy,  but  I  see  no   reason  why  it  should  not.     The  tenant  in 


EEQUISITES  TO  ALL  LEASES.      109 

agreement  for  one,  which  arises  upon  the  construction  of 
the  Statute  of  Frauds.  A  lease,  as  we  have  seen,  may 
be  by  mere  words,  if  the  term  do  not  exceed  three 
years  ;  but  if  it  do  exceed  three  years,  then  it  must  be 
in  writing,  signed  by  the  lessor  or  his  agent,  and  that 
agent  must  himself  be  authorized  by  writing  to  do  so.^^ 
Now  an  agreement  for  a  lease  is  governed  by  a  different 
section  of  the  Statute,  the  fourth  section,  which  enacts 
"  that  no  action  shall  be  brought  to  charge  any  person 
upon  any  contract  or  sale  of  lands,  tenements,  or 
hereditaments,  or  any  interest  in  or  concerning  them, 
unless  the  agreement,  or  some  memorandum  or  note 
thereof,  shall  be  in  Avi'iting,  signed  by  the  party  to 
be  charged,  or  some  other  person  thereunto  by  him 
lawfully  authorized. "(a)  Now  you  will  observe  upon  the 
one  hand  that  this  enactment  is,  in  one  respect,  less 
stringent  than  *that  of  the  first  section,  since  |-#^c-| 
the  memorandum  it  requires  may  be  signed 
either  by  the  principal  or  by  an  agent,  who  need  not, 
like  an  agent  who  signs  a  lease  for  more  than  three 

possession,  under  such  circumstances,  is  bound  to  cultivate  the  land 
as  if  he  were  going  to  continue  in  possession  as  long  as  the  lease 
itself  would  have  lasted.  It  is  argued  that  the  tenancy  arises  by 
operation  of  law  upon  the  payment  of  rent,  and  that  the  law  implies 
no  particular  mode  of  cropping,  nor  any  condition  of  re-entry.  But 
the  terms  upon  which  the  tenant  holds  are,  in  truth,  a  conclusion  of 
law  from  the  facts  of  the  case  and  the  terms  of  the  articles  of  agree- 
ment, and  I  see  no  reason  why  a  condition  of  re-entry  should  not  be 
as  applicable  to  this  tenancy  as  the  other  terms  expressed  in  the 
articles."  See  also  Daniel  v.  Grracie,  6  Q.  B.  145,  (51  E.  C.  L.  R. 
145,)  and  Watson  v.  Waud,  8  Exch.  335. 

^^  We  have  already  seen  that  these  leases  must  now  be  hy  deed. 
Ante,  p.  62,  note  ^. 

(a)  See  ante  note  to  page  98,  and  the  cases  of  Irvine  v.  Bull,  4 
Watts,  287.     George  v.  Bartouer,  7  Watts,  530. 


110  LANDLORD    AND    TENANT. 

years,  be  authorized  hy  writing.  On  the  other  hand, 
the  enactment  of  the  fourth  section  is  more  stringent 
than  that  of  the  first,  for  there  are  certain  leases  which, 
as  we  have  seen,  are  excepted  out  of  the  provisions  of 
that  section,  and  may,  therefore,  be  made  by  mere 
parol.  But  there  is  no  corresponding  exception  in  the 
case  of  agreements,  and  therefore,  though  a  lease  for  a 
year  may  be  made  by  mere  words,  yet  an  agreement 
for  such  a  lease  cannot.  On  this  distinction  turned 
the  case  of  Edge  v.  Strafford,  1  Tyrwh.  295,  [S.  C.  1 
Cr.  &  J.  391*].  In  that  case  the  defendant  had  agreed 
by  parol  to  take  the  plaintiff's  lodgings  for  two  years, 
and  the  action  was  brought  against  him  for  refusing  to 
perform  his  contract.  The  Court  held  that  the  action 
woidd  not  lie,  as  the  fourth  section  of  the  Statute  of 
Frauds  was  imperative  that  such  an  agreement  should 
be  reduced  to  writing.  Indeed,  the  Court  in  their 
judgment,  which  was  delivered  by  the  late  Sir  John 
Bayley,  and  is  an  excessively  elaborate  and  instructive 
one,  went  still  further,  and  held  that,  even  if  the  words 
used  had  been  sufficient  to  create  a  demise,  still  the 
action  could  not  have  been  successfully  maintained,  in- 
asmuch as,  by  the  lease,  an  interesse  termini  only  would 
have  been  created,  which,  as  I  explained  in  the  first 
Lecture,  would  not  have  been  perfected  into  a  term 
r*7fi1  ^^^^^^  *entry,-^''  and  that  the  agreement  to  enter 
would  have  been  invalid  for  want  of  a  writing — 
which  certainly  is  going  extremely  far.  And  I  will 
freely  confess  that,  had  the  case  of  Strafford  v.  Edge 
never  existed,  I  should  have  thought  it  at  least  ques- 
tionable upon  the  principles  laid  down  in  the  judg- 
ment of  the  Coiu't  of  Queen's  Bench  in  Lord  Bolton  v. 
Tomlin,  5  A  &  E.  856,  (31  E.  C.  L.  R.  855),  whether, 

19  Ante,  p.  13. 


USUAL    INCIDENTS.  Ill 

if  there  were  a  valid  parol  demise,  all  terms  contained 
in  that  demise  must  not  be  binding ;  at  all  events,  if 
they  were  such  as  had  a  fair  reference  to  the  demise, 
and  were  calculated  to  render  it  operative.  However, 
the  concluding  words  of  the  judgment  of  the  Court  of 
Exchequer  in  Strafford  v.  Edge  are,  "  The  effect  of  the 
Statute  of  Frauds,  so  far  as  it  applies  to  parol  leases 
not  exceeding  three  years  from  the  making,  is  this, 
that  the  leases  are  valid,  and  that,  whatever  remedy  can 
be  had  upon  them  in  their  character  of  leases^  may  be 
resorted  to,  but  that  they  do  not  confer  the  right  to  sue 
the  lessee  for  damages  for  not  taking  possession."  The 
entire  judgment  in  Strafford  v.  Edge  is  very  well  worth 
your  perusal,  and  in  addition  to  it  you  may  refer  to 
Mechelen  v.  Wallace,  7  A.  &  E.  49,  (34  E.  C.  L.  R.  32,).2« 

Having  said  thus  much  on  the  four  incidents  which 
are  inseparable  from  the  very  being  of  a  lease,  and 
which  exist  in  every  lease,  namely,  that  there  should 
be  a  lessor  capable  of  demising,  a  *lessee  capable  r^n<-i-\ 
of  holding  the  estate  demised,  a  subject-matter 
capable  of  being  demised,  and  apt  and  sufficient  words 
of  demise,  we  next  arrive  at  those  stipulations  which, 
although  not  inherent  to  the  very  nature  of  a  lease  in 
such  a  manner  that  their  absence  would  prevent  the 
creation  of  any  lease  at  all,  are,  nevertheless,  the  usual 
and  proper  incidents  and  concomitants  of  one. 

Now,  the  best  way  of  treating  these  is,  to  consider 
how  they  appear,  and  in  what  manner  they  operate,  in 
a  lease  hy  deed^  that  being,  generally  speaking,  the 
most  formal  and  carefully  drawn  sort  of  lease — observ- 
ing, as  we  go  on,  any  difference  which  would  arise  out 
of  the  circumstance  of  the  lease  being  by  writing  not 
under  seal  or  by  bare  parol. 

20  See  also  Vaughan  v.  Hancock,  3  C  B.  7G6,  (54  E.  C.  L.  R.  76G,). 


112  LANDLORD    AND    TENANT. 

Now  the  formal  parts  of  which  a  lease  by  deed 
almost  invariably  is  made  up,  are — 

1st.  The  Premises. 

2ndly.  The  Habendum. 

3rdly.  The  Reddendum. 

4thly.  The  Covenants. 

5thly.  Any  Exceijtion^  Proviso^  or  Condition,  by 
which  the  contract  is  qualified. 

Now,  with  regard  to  the  lyremises,  under  which  word 
is  comprised  all  that  part  of  the  lease  which  precedes 
the  liabendwm,  their  office  is  to  contain  the  recitals,  if 
there  be  any,  to  name  the  lessor  and  the  lessee,  to  set 
r*7Q-|  forth  the  consideration,  and  to  specify  the 
subject-matter  of  demise.^^     That  *a  lessor,  a 

2^  The  premises  usually  contain  the  date  of  the  lease,  and  the 
names  and  descriptions  of  the  parties.  The  naming  of  the  parties  at 
the  commencement  of  the  deed  is  not  only  useful  in  order  to  make 
the  contract  clear,  but  it  is  important  since  the  rights  of  action  on  it 
may  be  affected,  if  any  person  intended  to  be  a  party  is  not  mentioned 
as  such.  For  it  was  an  inflexible  rule  of  law  that  when  a  deed  was 
inter  partes,  that  is  to  say  was  expressed  to  be  between  certain  named 
parties  (as,  for  instance,  between  A.  of  the  first  part,  B.  of  the 
second  part,  and  C.  of  the  third  part),  no  one  who  was  not  a  party 
could  sue  on  it,  even  although  it  contained  an  express  covenant  with 
him,  or  the  contract  appeared  otherwise  to  have  been  made  for  his 
advantage.  2  Inst.  673;  2  Eoll.  Ab.  Faits  (F.  1);  Berkeley  v. 
Hardy,  5  B.  &  C.  355,  (11  E.  C  L.  R.  495,)  and  the  judgment  in 
Bushell  V.  Beavan,  1  Bing.  N.  C  120,  (27  E.  C.  L.  R.  570,).  And 
this  rule  is  still  in  force,  subject  to  an  exception  created  by  the  5th 
section  of  the  8  &  9  Vict.  c.  106,  which  enacts  that  <•  under  an 
indenture  executed  after  the  1st  of  October,  1845,  an  immediate 
estate  or  interest  in  any  tenements  or  hereditaments,  and  the  benefit 
of  a  condition  or  covenant  respecting  any  tenements  or  hereditaments 
may  be  taken,  although  the  taker  thereof  be  not  named  a  party  to  the 
same  indenture."  The  date  of  the  lease  is  also  frequently  important, 
and  care  should  be  taken  in  practice  to  see  that  it  is  correct  with 
reference  to  any  portions  of  the  lease  which  may  refer  to  it,  as,  for 
instance,  the  habendum.     See  j)ost,  p.  83. 


THEPREMISES.  113 

and  a  subject-matter  of  demise,  are  essential  to  lessee, 
the  existence  of  every  lease,  we  have  already  seen. 
With  regard  to  recitals  the  reason  for  inserting  them 
is  usually  to  prevent  the  parties  to  the  lease  from  after- 
wards denying  the  matters  recited,  for  a  lease  by  deed 
operates  like  any  other  deed  as  an  estoppel,  and  pre- 
vents the  parties  to  it  from  afterv^'^ards  disputing  facts 
recited  in  it^\a)   With  regard  to  the  consideration,  that 

^^  See  as  to  the  estoppel  by  recitals,  Salter  v.  Kidley,  1  Show.  58  ; 
Com.  Dig.  Estoppel  (A.  2) ;  the  notes  to  the  Duchess  of  Kingston's 

(a)  The  recital  of  any  fact  material  to  the  conveyance,  the  exist- 
ence on  or  non-existence  of  which,  would  determine  its  validity,  is  uo 
doubt  binding  on  the  parties  to  a  deed,  and  will  estop  them  from  dis- 
puting it  thereafter  in  any  proceeding  arising  on  the  deed. 

But  this  in  the  words  of  G-reenleaf,  Vol.  I.,  p  267,  "  is  only  true  of 
particular,  not  of  general  recitals;  thus,  if  one  be  bound  in  a  bond 
conditioned  to  perform  the  covenants  in  a  certain  indenture,  or  to 
pay  the  money  mentioned  in  a  certain  recognizance,  he  shall  not  be 
permitted  to  say,  that  there  was  no  such  indenture  or  recognizance. 
But  if  the  bond  be  conditioned,  that  the  obligor  shall  perform  all  the 
agreements  set  down  by  A.,  or  carry  away  all  the  marie  in  a  certain 
close,  he  is  not  estopped  by  this  general  condition  from  sajing,  that 
no  agreement  was  set  down  by  A.,  or  that  there  was  no  marie  in  the 
close.  Neither  does  this  doctrine  apply  to  that,  which  is  mere 
description  in  the  deed,  and  not  an  essential  averment;  such  as,  the 
quantity  of  land ;  its  nature,  whether  arable  or  meadow ;  the  number 
of  tons,  in  a  vessel  chartered  by  the  ton ;  or  the  like ;  for  these  are 
but  incidental  and  collateral  to  the  principal  thing,  and  may  be  sup- 
posed not  to  have  received  the  deliberate  attention  of  the  parties." 

Whether  the  recital  of  the  payment  of  the  consideration  money  in 
a  deed  of  conveyance,  is  an  estoppel  as  to  the  amount  recited  to  be 
paid,  is  differently  ruled  in  England  and  in  this  country.  In  Eng- 
land, the  recital  is  held  to  be  conclusive  evidence  by  estoppel,  not 
only  of  the  fact  that  there  was  a  consideration,  but  also  of  its  amount 
and  of  its  payment.  Shelley  v.  Wright,  Willes,  9;  Rowutree  v. 
Jacob,  2  Taunt.  141 ;  Lampon  v.  Corke,  5  B.  &  Aid.  606,  (7  E.  C. 


114  LANDLORD    AND    TENANT. 

r*^Q-|    *i^  usually  in  a  lease  expressed  to  be  the  rent 
thereafter  reserved,  the  covenants  by  the  lessee, 

case,  2  Smith's  L.  C.  456 ;  Lainson  v.  Tremere,  1  A.  &  E.  792,  (28 
E.  C.  L.  R.  367,) ;  Bowman  v.  Taylor,  2  A.  &  E.  278,  (29  E.  C.  L. 
R.  142,) ;  Carpenter  v.  BuUer,  8  M.  &  W.  209  ;*  Beckett  v.  Brad- 
ley, 7  M.  &  G-.  994,  (49  E.  C.  L.  R.  994,) ;  Pargeter  v.  Harris,  7 
Q  B.  708,  (53  E.  C.  L.  R.  708,)  ;  Pilbrow  v.  Pilbrow's  Atmospheric 
Railway  Co.  5  C.  B.  440,  (57  E.  C.  L.  R.  440,) ;  Young  v.  Rain- 
cock,  7  C.  B.  310,  (62  E.  C.  L.  R.  310,) ;  Wiles  v.  Woodward,  5 
Exch.  557 ;  and  Hills  v.  Laming,  9  Exch.  256.  The  estoppel  by 
recitals  or  other  statements  in  a  deed,  does  not  extend  beyond  actions 

L.  R.  205 ;)  Baker  v.  Dewey,  1  B.  &  C.  704,  (8  E.  C.  L.  R.  297;)  Hill 
V.  Manchester  Waterworks,  2  B.  &  Ad.  544,  (22  E.  C.  L.  R.  229,). 
The  generally  received  American  doctrine  is,  that  the  notoriety  of 
the  practice  of  putting  another  than  the  true  consideration  in  deeds, 
makes  this  an  exception  to  the  general  rule,  by  limiting  the  force  of 
the  recital  to  being  conclusive  as  to  the  fact,  that  the  deed  is  the  deed 
of  the  party,  and  that  there  was  a  consideration ;  but  the  amount  of 
the  consideration,  and  whether  it  has  been  paid,  are  not  considered 
as  conclusively  established  by  the  recital ;  as  to  these  matters  the 
deed  may  be  contradicted.  A  man  is  estopped  by  his  deed  to  deny 
that  he  granted,  or  that  he  had  a  good  title  to  the  estate  conveyed ; 
but  he  is  not  bound  by  the  consideration  expressed.  Wilkinson  v. 
Scott,  17  Mass.  257 ;  Clapp  v.  Tirrell,  20  Pick.  250 ;  Schilenger 
V.  M'Cann,  6  Greenl.  364 ;  M'Crea  v.  Purmort,  16  Wend.  468 ; 
Bowen  v.  Bell,  20  Johns.  338;  Hamilton  v.  M'Guire,  3  S.  & 
R.  355;  Bolles  v.  Beach,  2  Zab.  680;  Burbank  v.  Gould,  15  Mass. 
118;  Pritchard  v.  Brown,  4  New  Ham.  400;  O'Neal  v.  Lodge,  3 
Harr.  &  M'Hen.  433;  Wilt  v.  Franklin,  1  Binney,  519;  Bolton  v. 
Johns,  5  Barr,  151;  Union  Canal  Co.  v.  Young,  1  Wh.  431;  Wolf 
V  Ilauver,  1  Gill.  84 ;  Morgan  v.  Bitzenbuger,  3  Gill.  355. 

The  grantor  is  not  estopped  to  prove  that  there  were  other  consi- 
derations than  those  expressed  in  the  deed.  Emmons  v.  Littlefield,  1 
Shep.  233;  Burbank  v.  Gould,  3  Shep.  118;  Morse  v.  Shattack,  4 
New  H.  229 ;  Belden  v.  Seymour,  8  Conn.,  304 ;  M'Crea  v.  Pur- 
mort, 16  Wend.  460;  Whitbeck  v.  Whitbeck,l9  Cowen,  266;  Shep- 
perd  V.  Little,  14  Johns.  211 ;  Bowen  v.  Bell,  "JO  Juhus.  338. 


THE     PREMISES.  115 

and  the  *fine,  if  there  be  one.  Where  a  fine  is  r*or|-. 
paid  at  the  time  of  making  the  lease  the  lessor 

or  proceedings  on  the  deed  itself;  that  is  to  say,  it  is  only  in  pro- 
ceedings founded  on  the  deed  containing  the  recitals  that  they  are 
conclusive  evidence  of  the  facts  stated  in  them  j  in  other  collateral 
proceedings  the  recitals  are  evidence  against  the  party  who  executed 
the  deed,  like  any  other  admission,  but  they  may  be  explained  or 
contradicted.  The  limitations  upon  the  general  rule,  that  parties  are 
estopped  by  statements  in  deeds  executed  by  them,  were  stated  by 
Baron  Parke,  in  Carpenter  v  Buller,  in  the  following  terms  : — ''  If 
a  distinct  statement  of  a  particular  fact  is  made  in  the  recital  of  a 
bond,  or  other  instrument  under  seal,  and  a  contract  is  made  with 
reference  to  that  recital,  it  is  unquestionably  true,  that,  as  between 
the  parties  to  that  instrument,  and  in  an  action  upon  it,  it  is  not  com- 
petent for  the  party  bound  to  deny  the  recital,  notwithstanding  what 
Lord  Coke  says  on  the  matter  of  recital  in  Co.  Litt.  352,  b  ]  and  a 
recital  in  instruments  not  under  seal  may  be  such  as  to  be  conclusive 
to  the  same  extent.  A  strong  instance  as  to  a  recital  in  a  deed  is 
found  in  the  case  of  Lainson  v.  Tremere,  where,  in  a  bond  to  secure 
the  payment  of  rent  under  a  lease  stated,  it  was  recited  that  the 
lease  was  at  a  rent  of  £170,  and  the  defendant  was  estopped  from 
pleading  that  it  was  £140  only,  and  that  such  amount  had  been  paid. 
So,  where  other  particular  facts  are  mentioned  in  a  condition  to  a 
bond,  as  that  the  obligor  and  his  wife  should  appear,  the  obligor  can- 
not plead  that  he  appeared  himself,  and  deny  that  he  is  married,  in 
an  action  on  the  bond.  1  Roll.  Abr.  873,  c.  25.  All  the  instances 
given  in  Com.  Dig.  Estoppel  (A.  2),  under  the  head  of  '  Estoppel  by 
matter  of  writing,  (except  one  which  relates  to  a  release),  are  cases  of 
estoppel  in  actions  on  the  instrument  in  which  the  admissions  are 
contained.  By  his  contract  in  the  instrument  itself,  a  party  is 
assuredly  bound,  and  must  fulfil  it.  But  there  is  no  authority  to 
show  that  a  party  to  the  instrument  would  be  estopped,  in  an  action 
by  the  other  party  not  founded  on  the  deed,  and  wholly  collateral  to 
it,  to  dispute  the  facts  so  admitted,  though  the  recitals  would  cer- 
tainly be  evidence;  for  instance,  in  another  suit,  though  between  the 
same  parties,  where  a  question  should  arise,  whether  the  plaintiff  held 
at  a  rent  of  170^.  in  the  one  case,  or  was  married  in  the  other  case, 
it  could  not  be  held  that  the  recitals  in  the  bond  were  conclusive 


116  LANDLORD    AND    TENANT. 

r*o-n    ^^sually  *acknowledges  the  receipt  of  it  in  this 
part  of  the  instrument,  and  this  sort  of  receipt 

evidence  of  tliese  facts.  Still  less  would  matter  alleged  in  the  instru- 
ment, wholly  immaterial  to  the  contract  therein  contained ;  as,  for 
instance,  suppose  an  indenture  or  bond  to  contain  an  unnecessary 
description  of  one  of  the  parties  as  assignee  of  a  bankrupt,  overseer 
of  the  poor,  or  as  filling  any  other  character,  it  could  not  be  contended 
that  such '  statement  would  be  conclusive  on  the  other  party,  in  any 
other  proceeding  between  them."  These  observations  appear  to 
imply  that  such  a  description  would  estop  the  parties  in  an  action  on 
the  deed  itself,  even  although  immaterial  to  the  contract.  In  Pilbrow 
V.  Pilbrow's  Atmospheric  Rail.  Co.,  5  C  B.  440,  (57  E.  C.  L.  R. 
440,)  a  company  was  described,  in  a  deed  made  between  it  and  the 
plaintifi",  as  being  registered  and  incorporated  in  pursuance  of  the 
Joint  Stock  Companies  Registration  Act ;  a  description  not,  however, 
immaterial  to  the  contract.  It  was  held  in  an  action  on  the  deed, 
that  the  company  was  estopped  from  denying  its  registration  and 
incorporation.  All  the  parties  to  a  deed  are  not,  however,  necessarily 
estopped  by  every  recital  in  it.  It  is  only  where  a  recital  is  intended 
to  be  a  statement,  which  they  all  have  mutually  agreed  to  admit  as 
true,  that  it  has  the  force  of  an  estoppel  with  respect  to  all  of  them. 
Where  it  is  intended  to  be  the  statement  of  one  party  only,  the 
estoppel  is  confined  to  that  party ;  and  the  intention  of  the  parties 
in  this  respect  is  to  be  gathered  from  the  instrument  itself.  See  the 
judgment  in  Stroughill  v.  Buck,  14  Q.  B.  787,  (68  E.  C.  L.  R.  787,). 
This  rule  is  clearly  illustrated  by  the  facts  of  that  case,  which  were 
as  follows : — iVn  indenture  had  been  made  between  the  defendant  and 
the  plaintifi",  which  recited  that  the  defendant  had  advanced  money 
to  a  third  person  on  the  security  of  some  deeds,  that  this  money  was 
still  owing,  and  that  the  defendant  was  interested  in  the  deeds  to  the 
extent  of  the  advance.  It  also  recited  that  it  had  been  agreed  that 
the  plaintifi'  should  make  further  advances  to  this  third  person,  and 
that  the  defendant  should  assign  the  deeds  and  his  interest  therein  to 
the  plaintiff  as  a  security;  and  it  contained  a  covenant  by  the  defend- 
ant that  the  money  advanced  by  him  was  still  due.  In  an  action  on 
this  indenture  the  plaintiff  assigned  as  a  breach  that  the  money  ad- 
vanced by  the  defendant  was  not  due  at  the  time  of  the  making  of 
the  covenant.     It  was  objected  on  the  part  of  the  defendant  that  the 


THE    PREMISES.  117 

being  by  deed,  operates  as  an  estoppel,  and  is  so  con- 
clusive that  it  is  incapable  of  being  afterwards  denied 
or  contradicted  by  evidence."^^ 

plaintiff  was  estopped  by  the  recitals  in  the  deed  from  alleging  this 
fact.  But  the  Court  held,  that  the  recital  as  to  the  advance  of  the 
money  must  be  taken  to  be  the  language  of  the  defendant  only,  and 
consequently  that  the  plaintiff  was  not  bound  by  it.  In  Browning  v. 
Beston,  1  Plowd.  134,  it  is  said  in  the  argument  that  a  distinction 
exists  between  deeds  poll  and  indentures,  for  "  the  words  in  an 
indenture  are  the  words  of  both  parties,  and  although  they  are  spoken 
as  the  words  of  one  party  only,  yet  they  are  not  his  words  alone,  for 
there  is  the  assent  of  the  other  party  to  each  other's  words;  and 
therefore  when  they  are  written  they  shall  be  taken  in  such  manner 
as  the  intent  of  the  parties  may  be  supposed  to  be.  And  they  shall 
not  be  taken  most  strongly  against  one  and  beneficially  for  another, 
as  the  words  of  a  deed  poll  shall,  for  there  the  words  shall  be  taken 
most  strongly  against  the  grantor,  and  most  available  to  the  grantee. 
But  it  is  not  so  in  a  deed  indented,  because  the  law  makes  each 
party  privy  to  the  speech  of  the  other  :  and  therefore  we  ought  not 
to  make  such  construction  of  words  in  an  indenture  as  in  a  deed 
poll.  But  if  an  indenture  contains  matter  uf  substance,  the  law  will 
make  such  reference  thereof  as  is  most  Jit  and  reasonable,  and  will  say 
that  the  words  are  spoken  by  him  who  could  most  properly  speak 
them."  See  also  the  arguments  in  Russel  v.  Gulwell,  Cro.  Eliz.  657  j 
Scovell  and  Gavel's  Case,  1  Leon.  317,  and  the  authorities  there 
cited.  It  may  be  convenient  to  mention  here  that  the  estoppel 
between  landlord  and  tenant  which  prevents  the  latter  from  disputing 
the  landlord's  title,  ceases  on  the  expiration  of  the  lease  j  subject, 
however,  to  the  qualification  that  if  the  tenant  came  into  possession 
under  the  landlord,  he  must  restore  the  possession  before  he  can 
dispute  the  title  ;  see  Co.  Litt.  47  b ;  Bayley  v.  Bradley,  5  C.  B.  396, 
(57  E.  C.  L.  R.  396,) ;  and  the  observations  of  the  Lord  Chief  Justice 
Wilde,  ib.  400,  (57  E.  C.  L.  R.  400,). 

23  See  Baker  v.  Dewey,  1  B.  &  C.  704,  (8  E.  C.  L.  R.  297,)  j 
Rowntree  v.  Jacob,  2  Taunt.  141 ;  and  Baker  v.  Heard,  5  Exch.  959. 
The  receipt  which  is  usually  indorsed  on  the  back  of  a  deed  not 
being  under  seal,  does  not  create  an  estoppel;  but,  like  any  other 
receipt  not  under  seal,  admits  of  being  explained  or  contradicted. 


118  LANDLORD    AND     TENANT. 

r*QC)-i  *Thc  hahendiim  is  that  part  of  the  lease  which 
begins  with  the  words  "  to  have  and  to  hold  /' 
its  office  is,  to  specify  the  quantity  and  quality  of  the 
lessee's  estate  ;^  for  instance  thus  : — "  To  have  and  to 
hold  the  said  messuages  and  i^remises  with  the  appurte- 
nances hereinhefore  mentioned  and  intended  to  he  hereby 
demised^  unto  the  said  A.  B.,  his  executors,  administrators, 
and  assigns,  from  the  1st  day  of  January  now  last  past, 
for,  and  during,  and  unto  the  full  end  and  term  of, 
tiventy-one  years  thence  next  ensuing,  and  fully  to  he  com- 
plete and  endedr  It  is  often  said  by  our  text-writers 
that  the  hahendmn  in  a  deed  may  limit  and  ascertain 
the  extent  of  general  words  used  in  the  premises,  but 
cannot  contradict  or  destroy  them  ;  thus,  for  instance,  if 
in  the  premises  A.  were  to  demise  to  B.  for  ninety- 
nine  years  habendum  to  him  for  twenty-one  years,  the 
habendum  would  be  void,  and  the  lessee  would  take  for 
ninety-nine  years;  (see  Plowden,  153),  but,  if,  in  the 
premises,  A.  demised  generally  to  B.  without  naming 
the  number  of  years,  and  then  came  an  habendwn  for 
ninety-nine  years,  this  habendum  would  be  operative 
since  it  would  only  explain,  not  contradict,  the  words 
used  in  the  premises  (see  1  Inst.  183  a)."^ 

Straton  v.  Eastall.  2  T.  R.  366  ;  Lampon  v.  Corke,  5  B.  &  A.  606, 
(7  E.  C.  L.  R.  205,) ;  Graves  v.  Key,  3  B.  &  Ad.  313,  (23  E. 
C.  L.  R.  143,).  In  Lampon  v.  Corke  it  was  held  that  a  release 
contained  in  a  deed  did  not  amount  to  an  estoppel,  this  portion  of  the 
deed  being  ambiguous  when  compared  with  the  statements  on  the 
same  subject  in  the  recitals. 

24  See  the  judgment  in  Doe  d.  Timmis  v.  Steele.  4  Q.  B.  667,  (45 
E.  C.  L.  R.  667,)  ;  where  it  is  said  that  the  proper  office  of  the 
habendum  is  to  limit,  explain,  or  qualify  the  words  in  the  premises, 
provided  it  be  not  contradictory  or  repugnant  to  them. 

2*  See  also  Co.  Litt.  299  a.  The  habendum  marks  the  duration  of 
the  tenant's  interest,  and  its  operation  as  a  grant  is  only  prospective ; 
see  the  judgment  in  Wyburd  v.  Tuck,  1  B.  &  P.  464.     Therefore 


THE    HABENDUM.  119 

*In  construing  the  habendum  of  a  lease  difR-    r*oq-| 
culties  sometimes  arise  as  to  the  precise  period 
at  which  the  term  is  to  begin  or  end,  and  the  precise 
duration  of  the  estate  limited.^^     With  regard  to  the 

where  a  tenant  had  entered  before  the  execution  of  the  lease,  and  had 
pulled  down  buildings,  it  was  held  that  he  was  not  liable  for  these 
acts  on  the  covenant  to  repair  contained  in  the  subsequently  executed 
lease,  although  the  liahendum  referred  to  a  period  anterior  to  the 
acts  complained  of.  Shaw  v.  Kay,  1  Exch.  412 ;  see  also  Doe  d. 
Darlington  v.  Ulph,  13  Q.  B.  204,  (66  E.  C.  L  R  204,). 

2s  It  is  important,  in  practice,  to  take  care  that  any  reference  iu 
the  habendum  to  the  date  of  the  lease  is  correct.  Where,  as  is  fre- 
quently the  case,  the  day  upon  which  the  lease  is  executed  is  different 
from  that  on  which  it  is  dated,  a  mistake  in  this  respect  may  lead  to 
considerable  difficulty.  For  although  deeds  take  effect  from  the  time 
at  which  they  are  delivered,  not  from  the  day  on  which  they  are 
dated,  if  a  reference  is  made  in  the  lease  to  the  day  of  the  date — for 
instance,  if  the  term  is  expressed  to  commence  from  the  day  of  the 
date — its  duration  will  be  measured  from  that  day,  and  not  from  the 
time  at  which  the  deed  was  actually  executed.  See  Shep.  Touchst. 
108 ;  Hatter  v.  Ash,  cited  in  the  text ;  Doe  d.  Cox  v.  Day,  10  East. 
427 ;  Styles  v.  Wardle,  4  B.  &  C.  908,  (10  E.  C.  L.  R.  854,) ;  Steele 
V.  Mart,  ib.  272,  (10  E.  C.  L.  R.  576,) ;  Cooper  v.  Robinson,  10  M. 
&  W.  694  ;*  and  Doe  d.  Darlington  v.  Ulph,  13  Q.  B.  204,  (66  E. 
C.  L.  R.  204,).  If,  however,  the  deed  has  no  date,  or  an  impossible 
date,  as,  for  instance,  the  30th  February,  and  reference  is  made  in  it 
to  the  date,  this  word  will  be  construed  to  refer  to  the  delivery. 
Styles  V.  Wardle,  uhi  sup.  And  where  a  lease  was  dated  on  the 
25th  of  March,  1783,  and  the  premises  were  demised  for  thirty-five 
years  from  the  25th  March  "  noio  last  past,"  but  it  appeared  that  the 
deed  had  not  in  fact  been  executed  until  after  the  25th  of  March, 
1783,  it  was  held  that  the  term  did  not  begin  from  the  25th  of 
March  preceding  the  date  of  the  deed,  but  from  the  25th  March, 
1783.  Steele  v.  Mart,  uhi  sup.  This  decision  is  consistent  with  the 
rule  laid  down  in  Clayton's  Case,  5  Rep.  1,  namely,  that  if  the 
expression  used  in  the  lease  is  that  the  term  is  to  commence  "  from 
henceforth,"  it  shall  be  computed  from  the  time  of  the  delivery,  not 
from  the  actual  date.     See  also  Bac.  Ab.  Leases  (E.). 


120  LANDLORD    AND    TENANT. 

r*«4l  ^*^i'^^^'  it  ^^ed  to  be  held  that  *cIifFerent  con- 
structions were  to  be  put  on  demises,  from  the 
date  of  the  lease,  and  from  the  day  of  the  date — that  a 
lease  from  the  date  included  the  day  of  the  date,  but 
that  a  lease  from  the  day  of  the  date,  excluded  it.  Hat- 
ter V.  Ash,  1  Lord  E,aym.  84.  However,  in  Pugh  v. 
Duke  of  Leeds,  Cowp.  714,  which  is  the  chief  case  on 
this  subject,  it  was  decided,  after  full  consideration, 
that  the  word  from  may  be  either  inclusive  or  exclu- 
sive, according  to  the  subject-matter,  and  that  the 
Court  will  in  each  case  put  that  sense  upon  it  which 
will  best  effectuate  what  appears  to  have  been  the  in- 
tention of  the  parties.  And,  therefore,  in  that  case,  a 
lease  to  commence  from  the  day  of  the  date  ha\ing  been 
made  by  the  donee  of  a  "power,  which  power  was  to 
grant  leases  in  possession  hut  not  in  reversion,  it  was  held 
to  include  the  day  of  the  date  and  to  begin  immedi- 
ately, for  the  Court  thought  that  the  lessor  must  have 
intended  such  a  lease  as  he  had  power  to  grant,  and 
he  had  no  power  to  grant  a  lease  to  commence  in 
futuro.(ci) 


(a)  The  doctrine  of  Pugh  v.  the  Duke  of  Leeds,  may  be  taken 
as  the  generally  received  doctrine  of  the  American  cases,  at  the 
present  day.  When  time  is  to  be  computed  from  or  after  a  certain 
day,  that  day  is  to  be  excluded  in  the  computation,  unless  it  appear 
that  a  different  computation  was  intended  ]  so  if  time  is  to  be  com- 
puted from  any  act  done,  the  day  on  which  the  act  is  done  is  to  be 
excluded  in  the  computation,  whenever  such  exclusion  will  prevent 
an  estoppel,  or  save  a  forfeiture.  Wiggins  v.  Peters,  1  Met.,  127 ; 
Ewing  V.  Bailey,  4  Scam.,  420;  Windsor  v.  China,  4  Greenl.  298; 
Weeks  v.  Hull,  19  Conn.,  376;  Cornell  v.  Moulton,  3  Denio,  12; 
Farnell  v.  Rogers,  4  Cush.,  160;  Lyle  v.  Williams,  15  S.  &  K,  135; 
Bigelow  V.  Wilson,  1  Pick.,  485 ;  Pyle  v.  Moulding,  7  J.  J.  3Iarsh, 
202 ;  Jacobs  v,  Graham,  1  Black,  Jr.,  392 ;  Rand  v.  Rand,  4  N. 
Ham.,  267 ;   Goswiler's  Estate,  3  Penna.,  200  :  Blanchard  v.  Hil- 


THE    HABENDUM.  121 

The  judgment  of  Lord  Mansfield  in  that  case  is  ex- 
ceedingly well  worth  your  perusal,  and  you  may  read 

Hard,  11  Mass.,  85 ;  Woodbridge  v.  Brigham,  12  Mass.,  403 ;  Henry 
V.  Joues,  8  Mass  ,  453 ;  Lorent  v.  South  Carolina  Insurance  Com- 
pany, 1  N.  &  M.,  505;  O'Connor  v.  Towns,  1  Texas,  107;  Burr  v. 
Lelais,  6  Texas,  76. 

In  Maigs  v.  Anderson,  a  late  case  in  Pennsylvania,  not  yet  in  the 
reports,  but  to  be  found  12th  Legal  Intelligencer,  p.  238,  in  the  num- 
ber for  September  7th,  1855,  it  is  decided  that  "  a  lease  for  one  year, 
from  the  first  day  of  April  then  next,  for  the  rent  of  three  hundred 
dollars,  payable  at  the  expiration  of  the  term,"  expired  at  midnight, 
on  the  31st  of  March.  Judge  Knox  thus  recites  the  facts,  and  pro- 
pounds the  law  of  the  case  :  "David  Maigs  died  in  the  year  1847, 
seized  in  fee  of  certain  real  estate,  which  passed  by  his  death  to  his 
children,  eleven  in  number.  On  the  24th  of  February,  1848,'  seven 
of  the  eleven  heirs  executed  a  lease  of  the  farm  in  question  to  the 
defendant,  Anderson,  for  one  year  from  the  first  day  of  April  then 
next,  for  the  rent  of  three  hundred  dollars,  payable  at  the  expiration 
of  the  term ;  the  plaintiflF,  George  Maigs,  was  one  of  the  seven  who 
joined  in  the  lease.  By  order  of  the  Orphans'  Court  of  Chester 
county,  made  upon  the  application  of  the  administrator  of  David 
Maigs,  this  farm  was  sold  on  the  28th  of  October,  1848,  and  pur- 
chased by  George  Maigs,  the  plaintiff.  One  of  the  conditions  of  the 
sale  was,  that  the  deed  should  be  made  on  the  first  day  of  April, 
1849.  The  sale  was  confirmed  and  the  deed  made,  but  as  the  first  of 
April  came  on  Sunday,  the  deed  was  delivered  the  preceding  Saturday, 
the  31st  day  of  March,  1849.  The  defendant,  as  tenant,  occupied 
the  premises  from  the  first  day  of  April,  1848,  until  the  first  day  of 
April,  1849." 

"  It  is  impossible  to  examine  this  case  without  clearly  discovering 
the  intention  to  prevent  the  rent  in  controversy  from  passing  to  the 
purchaser.  The  title  to  the  premises  by  the  conditions  of  sale  was  to 
be  retained  until  the  lease  had  expired  and  the  act  of  the  adminis- 
trator, in  delivering  the  deed  the  day  before  it  could  have  been  legally 
demanded,  can  make  no  difference  in  the  case.  It  is  argued  for  the 
plaintiff  in  error  that  at  all  events  he  was  entitled  to  his  conveyance, 
on  the  first  day  of  April,  and  that  inasmuch  as  the  rent  was  not  due 
until  the  day  after  he  is  the  legal  owner  of  it,  this  argument  is  based 


I 


122  LANDLORD    AND    TENANT. 

it  in  connection  with  the  more  recent  one  of  Askland 
V.  Lutley,  9  A.  &  E.  879  (36  E.  C.  L.  R.  312),  in 

upon  the  supposition  that  the  lease  did  not  expire  until  the  first  of 
April,  A.  D.,  1849,  including  the  whole  of  that  day,  but  this  position 
cannot  be  sustained,  the  lease  was  from  the  first  of  April,  A.  D.,  1848, 
for  one  year,  the  tenant  took  possession  on  the  first  clay  of  April,  A.  D. 
1848,  and  at  the  close  of  the  31st  day  of  March,  he  had  occupied  the 
premises  for  an  entire  year.  The  first  day  of  April,  1849,  was  the 
commencement  of  another  year,  and  on  the  morning  of  that  day  at 
any  moment  after  12  o'clock  of  the  preceding  night,  the  rent  was  due, 
and  payable,  for  the  terra  had  then  expired. 

"  It  is  undeniably  true,  that  there  has  not  been  entire  uniformity  in 
the  rules  laid  down  by  Courts,  in  reference  to  the  computation  of  time. 
In  Goswiler's  Estate,  3  Penna.  R.,  200,  it  was  held  '  that  whenever 
by  a  rule  of  Court  or  an  act  of  the  Legislature  a  given  number  of 
days  are  allowed  to  do  an  act,  or  it  is  said  an  act  may  be  done  within 
a  given  number  of  days,  the  day  in  which  the  rule  is  taken,  or  the 
decision  made  is  excluded,'  but  in  Thomas  v.  Afilick,  4  Harris,  14,  it 
was  said  that  the  rule  of  the  common  law  is  to  include  the  first  day 
and  exclude  the  last,  and  that  this  was  the  true  rule ;  admitting  that 
'  Goswiler's  Estate '  was  not  well  considered — in  Lyle  v.  Williams, 
15  S.  &  Ft.,  136,  it  is  said  'that  where  the  expressions  are  from  the 
date,  the  rule  seems  to  be  that  if  a  present  interest  is  to  commence 
from  the  date,  the  day  of  the  date  is  excluded,  but  if  they  are  used 
merely  to  fix  'a  terminus  from  which  to  compute  time  the  day  is 
included,"  '  and  it  was  accordingly  held  in  that  case  that  where  a 
bond  was  dated  on  the  22nd  day  of  July,  1818,  payable  in  five  years 
from  the  date  a  scire-facias  quare  executio  non  might  issue  on  the 
22nd  of  July,  1823.  The  diversity  in  the  rule  appears  to  have  been 
caused  by  a  desire  to  apply  it  so  as  not  to  work  injustice.  The  parties 
to  this  transaction  doubtless  had  in  view  the  universal  understanding 
of  the  country,  that  where  one  rents  lands  or  tenements  for  a  year  from 
the  first  day  of  April,  the  tenant  has  the  right  to  enter  on  the  day 
named,  and  that  his  term  ceases  on  the  last  day  of  March  ensuing, 
any  other  construction  would  not  only  do  violence  to  the  customs  and 
habits  of  the  people,  but  would  in  the  case  before  us,  work  manifest 
injustice,  by  giving  to  the  plaintiff  the  income,  and  profits  of  an 
estate,  for  an  entire  year,  anterior  to  the  commencement  of  his  title." 


THE     HABENDUM.  123 

which  the  Court  of  Queen's  Bench  declared  the  general 
rule  with  regard  to  the  duration  of  leases  for  years,  to 
be,  that,  generally  speaking^  they  last  during  the  whole 
anniversary  of  the  day  from  ivJiich  they  are  gra^ited ; 
since,  otherwise,  the  day  on  which  the  last  quarter's 
rent  is  usually  made  payable  *would  be  subse-  r#oc-| 
quent  to  the  expiration  of  the  lease.^^ 

It  must  also  be  observed,  while  we  are  upon  this 
part  of  the  subject,  that  a  lease  may  be  so  worded  as 
to  run  from  one  date  in  point  of  computation^  and  from 
another  in  point  of  interest.  For  instance,  I  may  make 
a  lease  to  hold  for  ten  years  from  the  1st  of  January 
last,  and  it  will  begin  in  interest  from  the  day  of 
making,  but  in  computation  from  last  January;  or  I 
may  even  make  a  lease  for  ten  years  from  the  date,  but 
not  to  commence  till  the  expiration  of  a  lease  for  five 
years  now  existing  in  the  premises,  and  it  will  begin 
in  computation  from  the  date,  but  in  interest  from  the 
expiration  of  the  outstanding  lease.  See  Enys  v  Don- 
nithorne,  2  Burr.  1190.'^' 

With  regard  to  the  duration  of  the  term,  it  may  be 
either  for  a  number  of  years  absolutely,  or  for  a  number 
of  years  determinable  upon  some  contingency,  such,  for 
instance,  as  the  expiration  of  a  life  or  lives.  In  these 
cases  care  must  be  taken  to  avoid  any  mistake  in  using 
the  particles  and  and  or.,  for  a  lease  for  ninety-nine 
years,  if  A.  and  B.  so  long  live,  is  determinable  by  the 
death  either  of  A.  or  B. ;  but  a  lease  if  A.  or  B.  so 
long  live,  lasts  till  the  death  of  the  survivor  of  them. 

^  The  word  "  from  "  may  be  either  exclusive  or  inclusive,  accord- 
ing to  the  intention  of  the  parties.  It  is  now  usually,  but  not  neces- 
sarily, construed  to  be  exclusive.  See  the  judgment  in  Wilkinson  v. 
Gaston,  9  Q.  B.  137,  (58  E.  C.  L.  R.  137,). 

2^  See  the  cases  cited  ante,  p.  83,  note  2^"* 


124  LANDLORD    AND    TENANT. 

r*qp-i  Lord  Vaux's  *Case,  Cro.  Eliz.  269.^^  Some- 
times the  lease  is  for  a  certain  number  of  years, 
but  determinable  sooner,  at  the  election  of  the  parties 
or  one  of  them ;  and,  of  course,  if  it  be  specified  which 
is  to  have  the  option,  no  difficulty  on  the  subject  can 
arise.  Where  that  is  not  specified,  but  a  lease  is 
granted,  say  for  seven,  fourteen,  or  twenty-one  years, 
without  stating  which  party  is  to  have  the  option  of 
determining  it,  it  was  once  thought  that  either  party 
would  have  a  right  to  put  an  eiid  to  it  at  the  periods 
specified.  (See  Goodright  v.  Richardson,  3  T.  E..  462.) 
But  it  has  since  been  held,  both  at  law  and  in  equity, 
that  the  lessee  only  has  the  option,  Dann  v.  Spurrier,  3 
B.  &  P.  399;  Price  v.  Dyer,  17  Ves.  356;  Doe  v. 
Dixon,  9  East,  15,  in  which  Lord  Ellenborough  states 
that  these  decisions  proceed  upon  the  general  principle 
that  where  the  words  of  a  grant  are  doubtful,  they 
must  be  construed  most  strongly  in  favor  of  the 
grantee.^" 

I  will  resume  this  subject  in  the  next  lecture. 

"^  For  the  word  "or"  in  its  ordinary  and  proper  sense  is  a  dis- 
junctive particle,  and  ought  to  be  so  construed  unless  there  be  some- 
thing in  the  context  to  give  it  a  different  meaning.  See  the 
judgments  in  Elliott  v.  Turner,  2  C  B.  461,  (52  E.  C.  L.  R.  461,) ; 
and  Mortimer  v.  Hartley,  6  Exch.  60. 

3°  Where,  as  is  usually  the  case,  the  lease  specifies  that  the  option 
may  be  exercised  by  either  the  lessor  or  the  lessee,  either  of  them 
may  of  course  determine  the  lease.  See  Goodright  d.  Nicholls  v. 
Mark,  4  M.  &  S.  30. 


POINTS     RELATING    TO    TENANCIES.       125 


*LECTUilE    IV. 


[*87] 


Points  relating  to  Creation 

OF  Tenancy  (continued) 87 

Usual  Incidents  to  Demises 

(continued) 88 

The  Reddendum 88 

Nature  of  Eent 88 

Dififerent  Kinds  of  Rent ....  89 

Rent-service 89 

Distinction  between   Reser- 
vations  and   Exceptions.  91 
General  Rule  that  Rent  can- 
not issue  out  of  an  incor- 
poreal Hereditament 91 

Exceptions  to  Rule 92 

Rent  must  be   reserved  to 

Lessor 94 

The  Covenants 94 

For  Payment  of  Rent 96 

Other  usual  Covenants 97 

To  pay  Taxes    and    Tithe 

Rent-Charge 98 

To  insure 100 

Not  to  carry  on  particular 

Trades 101 


Exceptions  out  of  Demise 103 

Provisoes  and  Conditions 105 

Implied  Conditions 105 

Conditions  precedent . 106 

Conditions  subsequent 107 

Powers  of  Re-entry 108 

Waiver  of  Forfeiture 109 

By  Receipt  of  Rent,  &c 109 

Distinction  between  Leases  void 

and  voidable  only Ill 

Distinction  now  overruled 112 

Condition  not  to  assign 115 

How  broken 115 

Effect  of  a  License  to  assign. . .  117 
Distinction  between  Conditions 

not  to  assign  and  not  to 

underlet 118 

Re-entry  upon  Non-payment  of 

Rent 119 

At  common  Law 119 

Under   the   4    Geo.  2,  c.   28, 

and  the  15  &  16  Vict.  c. 

76 120 


We  were  considering,  on  the  last  evening,  the  usual 
formal  component  parts  of  a  lease  under  seal,  namely :- — 

1st.    The  Premises. 

2ndly.   The  Habendum. 

3rdly.   The  Reddendum. 

*4thly.   The   Covenants. 

5thly.  Ayiy  Exceptions,  Provisoes,  or  Conditions 
hy  which  the  Contract  may  chance  to  he  qualified. 

We  have  already  spoken  of  the  first  two  of  these 


[*88] 


126  LANDLORD    AND     TENANT. 

five  subjects,  namely,  the  'premises^  and  the  Tiahenclum. 
We  have  now  to  dispose  of  the  remaining  three  in 
order. 

With  regard  to  the  reddendum^  it  is  the  reservation  of 
a  rent  to  be  paid  to  the  lessor,  as  a  compensation  for  his 
relinquishing  the  thing  demised  to  the  lessee.  This 
rent,  which  is  derived  from  the  Latin  word  Q-edditus, 
signifying  a  return,  is  defined  by  Chief  Baron  Gilbert, 
in  his  Treatise  on  Bents,  page  9,  to  be  "  an  aQinical  returii 
made  hy  the  tenant  either  in  lahour,  money,  or  provisions, 
in  retribution  for  the  land  that  pa^sses  ;"  from  which  you 
will  observe  that  though  a  rent  is  usually  reserved  in 
money,  it  need  not  be  so ;  or  even  in  those  other  things 
mentioned  by  Gilbert,  but  which  are  only  given  by 
him  as  examples.  It  may,  as  is  said  by  Lord  Coke  (1 
Inst.  142  a),  consist  of  spurs,  horses,  or  other  things  of 
that  nature;  or  of  services  or  manual  labor,  as,  to 
plough  a  certain  number  of  acres  for  the  landlord 
yearly.^ 

r*SQl  *^  ^^y  ^^  ^yQ^  here  mention,  though  you  are 
probably  all  fully  aware  of  it,  that  there  are 
three  descriptions  of  rent  known  to  the  law,  entitled, 
rent-sermce,  rent-charge,  and  rent-seek.  The  first  being 
a  rent  reserved  upon  a  grant  or  lease  of  lands,  as  inci- 
dental to  their  tenure ;  the  second,  a  rent  granted  out 
of  lands  by  the  owner  to  some  other  person,  with  a 

^  The  services  of  cleaning  a  parish  church,  and  of  ringing  a  church 
bell  at  certain  hours,  without  any  pecuniary  render,  are  rents  for 
which  a  distress  may  be  made.  Doe  d.  Edney  v.  Beuham,  7  Q.  B. 
976,  (53  E.  C.  L.  R.  976,)  and  see  Doe  d.  Robinson  v.  Hinde,  2  M. 
&  Rob.  441.  So  a  royalty  payable  to  a  landlord  upon  the  bricks 
which  are  made  out  of  a  brickfield,  is  a  rent,  although  it  is  not  paid  for 
the  renewing  produce  of  the  land,  but  for  portions  of  the  land  itself, 
which  is  gradually  exhausted  by  the  working.  Reg.  v.  Westbrook, 
10  Q.  B.  178,  (59  E.  C.  L.  R.  178,). 


THE     REDDENDUM.  127 

clause  of  distress ;  and  the  third,  a  rent  without  power 
of  distress.^ 

A^  rent  service,  originally,  might  have  been  reserved 
upon  a  conveyance  of  lands  from  one  man  *to  r*QA-i 
another  in  fee-simple,  or  for  any  less  estate,  and 
all  quit-rents^  as  they  are  called  at  the  present  day,  were 
originally  rents  of  this  description ;  but  the  statute  of 
Quia  Emptores  [18  Edw.  1,  c.  1]  having,  as  I  stated  in 
the  first  Lecture,^  prohibited  tenancies  in  fee-simple 
from  being  any  longer  created  between  subjects,  and 

2  See  Bac.  Ab.  Rent  (A.).  A  rent-service  is  so  called,  because  it 
has  some  corporeal  service  incident  to  it,  as,  at  the  least  fealty,  Co. 
Litt.  87  b ;  and  a  re7it-cliarge,  because  the  land  is  charged  with  a 
distress  for  its  payment,  Co.  Litt.  143  b.  A  rent-seek  is  redditus 
siccus,  or  a  barren  rent  reserved  without  any  clause  of  distress.  A 
fee-farm  rent  is  a  rent  reserved  on  a  grant  in  fee.  This  term  appears 
to  relate  to  the  perpetuity  of  the  rent,  not  to  its  amount ;  and  it  is 
probably  only  properly  applicable  to  rents-service.  See  Co.  Litt.  143, 
b,  note  (5),  and  The  Governors  of  Christ's  Hosp.  v.  Harrild,  2  M.  & 
Gr.  713,  note,  (40  E.  C.  L.  R.  820,).  Another  meaning  is  attributed 
to  the  expression  in  Co.  Litt.  143  b,  and  in  the  judgment  and  notes 
in  Bx-adbury  v.  Wright,  2  Dougl.  624.  The  right  to  distrain  for 
rents-seek  was  given  by  the  4  Geo.  2,  c.  28,  s.  5,  by  which  it  was 
enacted  that  "  from  and  after  the  24th  day  of  June,  1731,  all  and 
every  person  or  persons,  bodies  politic  and  corporate,  shall  and  may 
have  the  like  remedy  by  distress,  and  by  impounding  and  selling  the 
same,  in  cases  of  rents-seek,  rents  of  assize,  and  chief  rents,  which 
have  been  duly  answered  or  paid  for  the  space  of  three  years  within 
the  space  of  twenty  years  before  the  first  day  of  this  present  session 
of  Parliament,  or  shall  be  hereafter  created,  as  in  case  of  rent  reserved 
upon  lease,  any  law  or  usage  to  the  contrary  notwithstanding."  The 
three  years  mentioned  in  the  act  during  which  rents-seek  existing  at 
the  time  of  its  passing  must  have  been  paid,  need  not  be  consecutive. 
Musgrave  v.  Emmerson,  10  Q.  B.  326,  (59  E.  C.  L.  R.  326,).  A 
fee-farm  rent  may  be  distrained  for,  if  brought  within  this  section,  ih. 
and  Bradbury  v.  Wright,  uhi  sup. 
^  See  ante,  p.  5. 


128  LANDLORD    AND    TENANT. 

directed  that,  upon  a  grant  of  land  in  fee-simple,  the 
grantee  should  hold  not  of  the  grantor,  but  of  the 
person  of  whom  the  grantor  himself  held,  it  has  resi^lted 
jfirom  this  statute,  that  a  rent-service  cannot  now  be 
reserved  upon  a  grant  of  lands  from  one  subject  to 
another  in  fee-simple ; (a)  since  a  rent-service  is  inci- 
dental to  a  tenure,  and  cannot  exist  where  there  is  no 
tenure,  and  there  is  now  no  tenure  between  the  grantee 
under  such  a  conveyance  and  the  grantor.*  However, 
though  a  rent-service  cannot  now  be  reserved  upon  a 
grant  in  fee-simple,  it  may  upon  the  grant  of  any  less 
estate ;  and,  of  course,  may  be  so  upon  a  lease,  and 
accordingly  every  rent  reserved  upon  a  lease  is  a  rent- 
service^  and  is  accompanied  by  that  which  is  the  inci- 
dent of  every  rent-service,  namely,  a  right  on  the  part 
r*qn  of  the  lessor  to  distrain  for  it.  Now,  *with  re- 
gard to  the  reddendum^  or  reservation  of  this 
rent,  there  are  three  things  to  be  observed  concerning 
it. 

First.  It  must  always  be  of  something  issuing  out  of 
the  thing  demised,  and  differing  from  it  in  nature,  and 
not  part  of  the  thing  itself,^  for  that  would  not  be  a 

^  See  Bac.  Ab.  Rent  (A)  1.  A  grant,  in  fee,  reserving  a  perpetual 
rent,  with  an  express  power  of  distress,  would  however  be  good  as  a 
rent-charge.  See  Co.  Litt.  143  b,  note  (5),  and  the  judgment  of 
Mr.  Justice  BuUer  in  Bradbury  v.  V/right,  2  Dougl.  624.  And  if 
such  a  rent  were  created  at  the  present  day  without  a  power  of  dis- 
tress, it  would,  apparently,  be  a  rent-seek,  and  as  such  attended  with 
the  right  of  distress  under  the  4  Geo.  2,  c.  28.  See  1  Selw.  N.  P. 
661,  note  (3),  (10th  Edit ) 

*  A  reservation,  therefore,  to  the  owner  of  the  land  of  its  vesture 
or  herbage  would  not  be  good.     Co.  Litt.  142  a. 

(a)  Not  so  in  Pennsylvania.  The  statute  Quia  Emptores  having 
been  held  under  the  words  of  the  charter  not  to  be  in  force  in  that 
State.     Ingersoll  v.  Sergeant,  1  Wh.  338. 


THE    REDDENDUM.  129 

reservation  but  an  exception.  Lord  Coke  sliows  the  dis- 
tinction between  a  reservation  and  an  exception  very 
clearly  in  the  1  Inst.  47  a.  "  Note"  he  says,  "  a  diver- 
sity between  an  exception,  which  is  ever  of  part  of  the 
thing  granted,  and  a  reservation  which  is  always  of  a 
thing  not  in  esse,  but  newly  created  or  reserved  out  of 
the  land  or  tenement  demised."  In  the  case  of  Doe  d. 
Douglas  V.  Lock,  2  A.  &  E.  705,  (29  E.  C.  L.  R  325,) 
the  whole  laAV  on  this  subject  is  collected,  and  you  will 
find  it  elaborately  explained  in  the  judgment  of  the 
Coiu't,  at  p.  743,  and  the  following  pages.'^(rt) 

6  See  also  Wickham  v.  Hawker,  7  M.  &  W.  63  ;*  The  Durham 
and  Sunderland  Kailway  Co.  v.  Walker,  2  Q.  B.  940,  (42  E.  C.  L. 
R.  987,) ;  and  Pannell  v.  Mill,  3  C.  B.  625,  (54  E.  C.  L.  R.  625,). 

(«)  Nothing  is  more  common  in  America,  than  to  make  the  rent  a 
certain  portion  of  the  annual  produce  of  the  farm, — as  for  instance 
one-half  the  grain,  to  be  delivered  in  the  bushel,  and  one-half  the  hay 
and  straw,  &c.,  and  it  has  always  been  held  that  these  are  good  reser- 
vations of  rent,  in  kind,  and  that  they  may  be  distrained  for.  It  is 
considered  the  fairest  mode  of  letting,  as  well  for  the  landlord  as  the 
tenant.  The  landlord  has  the  advantage  of  a  prosperous  harvest,  and 
the  tenant  escapes  the  heavy  loss,  which  a  year  of  scarcity  might  entail 
upon  him.  Stewart  v.  Dougherty,  9  Johns.,  108 ;  Fry  v.  Jones,  2 
Rawle,  11;  Rhinehart  v.  Olwine,  5  W.  &  S.,  157,  Jones  v.  Gundrim, 
3  W.  &  S.,  531.  But  in  Bowzer  v.  Scott,  8  Blackf.,  86 ;  it  is  said 
that  a  rent  payable  in  kind,  cannot  be  distrained  for. 

This  is  commonly  called  letting  land  on  the  shares,  a  form  of  ex- 
pression which  seems  to  be  sufficiently  accurate,  and  quite  apt  for  the 
expression  of  the  idea  intended  to  be  conveyed.  Though  Judge 
Woodworth,  in  De  Mott  and  others  against  Hageman,  8  Cowan,  220, 
seems  to  regard  the  expression  as  synonymous  with  what  is  called  by 
other  judges  cropping.  A  cropper  is  one  who  is  employed  to  raise  the 
single  crop,  and  who  is  to  be  paid  for  his  labor  by  a  certain  portion  of 
the  fruits;  he  is  held  to  be  a  servant,  not  a  tenant.  The  possession  is 
in  the  landlord,  who  alone  can  bring  trespass,  and  the  cropper  and  the 
landlord  are  tenants  in  common  of  the  crop.      But  when  the  form  of 

9 


130  LANDLORD    AND    TENANT. 

Secondly.  The  rent  must  be  reserved  out  of  some- 
thing to  which  the  lessor  may  have  recourse  to  distrain ; 

the  contract  is  a  lease,  aud  the  lessee  is  put  in  possession  of  the  farm, 
either  for  a  year,  or  from  year  to  year,  or  for  a  term  of  years,  ren- 
dering a  certain  portion  of  the  produce  as  rent,  be  is  a  tenant — he 
alone  can  bring  trespass,  and  the  landlord  has  no  interest  in  the  crops 
until  they  are  severed  and  delivered  to  him.  De  Mott,  et  al.,  r. 
Hageman,  8  Cow.,  220  ;  Tattle  r.  Bebee,  8  Johns.,  152 ;  Fry  v.  Jones, 
2  Rawle,  11;  Khinehart  v.  Olwine,  5  W.  &  S.,  157;  Haywood  v. 
Miller,  3  Hill,  90;  Graham  c  Houston,  4  Dev.,  332;  Doremus  v. 
Howard,  3  Zab.,  890. 

These  distinctions  are  as  old  as  Hare,  and  three  others,  v.  Celey, 
Cro.  Eliz.,  143.  Hare  was  seized  in  fee  of  sixteen  acres,  andeas  exposuit 
to  the  other  three  to  sow  at  halves.  Scil.:  That  he  should  find  one- 
half  the  seed,  and  the  other  three  the  other  half,  and  should  manure 
the  land,  and  that  Hare  should  have  one  moiety  of  the  grain  there 
growing,  when  it  was  reaped,  and  the  others  the  other  moiety;  and 
after  the  land  was  sown  A.  entered  by  command  of  the  defendant, 
and  spoiled  a  great  part  of  the  corn.  Upon  which  trespass  was 
brought. 

Quaere:  If  this  exposing  the  land  to  half  be  not  a  lease  of  the  land, 
so  as  the  action  was  to  be  brought  in  the  name  of  Hare  and  the  three  ? 
And  admitting  it  to  be  a  lease,  if  Hare  be  not  tenant  in  common 
with  them  of  the  corn ;  for  the  moiety  of  that  which  was  sown  was 
his.  The  Court  held  it  no  lease  of  the  land,  but  otherwise  if  it  be  for 
two  or  three  crops ;  and  therefore  as  to  breaking  of  the  close,  Hare 
only  was  to  bring  the  action;  and  as  to  spoiling  the  corn,  they  ought 
to  join,  being  tenants  in  common. 

In  several  recent  cases,  Putnam  r.  Wise,  1  Hill,  235;  Smyth  v. 
Taukersley,  20  Ala.,  212;  Dinehart  r.  Wilson,  15  Barb.,  595; 
the  decision  in  Stewart  r.  Doughty,  9  John,  108  ;  Overseers  v. 
Overseers,  14  Johns.,  365;  Jackson  v.  Bromnell,  1  Johns.,  267, 
has  been  reconsidered.  It  was  held  in  those  cases  that  when  the 
contract  is  in  form  a  lease,  reserving  a  portion  of  the  crops  as  rent,  it 
is  a  technical  lease,  and  the  title  to  the  whole  of  the  crops  is  in  the 
lessee  until  he  delivers  to  the  lessor  his  portion  in  payment  of  his 
rent.  "  And  these  are  the  positions,"  say  the  Court,  in  Dinehart  v. 
Wilson,  ^'overruled  in  Putnam  v.  Wise.     In  the  latter  case  it  is  laid 


THE    REDDENDUM.  131 

thus  a  rent  cannot  issue  out  of  a  right  of  common,  or 
out  of  another  rent,  or  in  fact  out  of  any  incorporeal 
hereditament.  It  is  very  true  that,  as  a  contract,  such 
a  reservation  may  bind  the  lessee ;  thus,  if  I  were  to 
demise  a  right  of  common  to  A.  B.,  yielding  and  pay- 
ing £50  a  year  to  me,  this  £50  a  year  would  not  be 
a  rent,  *because  a  rent  cannot  issue  out  of  a  r^qn-i 
right  of  common ;  but  it  w^ould  nevertheless  be 
a  sum  due  to  me  by  A.  B,  by  virtue  of  his  contract, 
and  for  which,  if  unpaid,  I  might  maintain  an  action 
of  debt  against  him.     See  Jewel's  Case,  5  Co.  3.^ 

^  See  Co.  Litt.  47  a ;  Bac.  Ab  Rent  (B) ;  Yin.  Ab.  Reservation 
(B).  Incorporeal  hereditaments  are  usually  capable  of  being  demised, 
but  a  rent,  properly  speaking,  cannot  issue  out  of  them  ;  uor  can  a 
rent  issue  out  of  goods.  See  the  3rd  Resolution  in  Spencer's  Case, 
5  Kep.  17  J  Newman  v.  Anderton,  2  N.  R.  224  ;  and  Salmon  v. 
Matthews,  8  M.  &  W.  .827.*  It  is  a  general  rule  that  when  a  rent 
is  nominally  reserved   out  of  two   things,  one  of  which  is  capable  of 

down  as  the  true  test,  that  if  there  is  any  provision  in  the  contract  for 
dividing  the  products  of  the  premises,  then  the  parties  become 
tenants  in  common  of  the  crops.  If  the  occupier  or  cultivator  is  to 
pay  a  certain  quantity  of  grain  or  other  article,  as  a  certain  number  of 
bushels  of  grain,  or  tons  of  hay,  &c.,  &c.,  then  he  is  a  tenant,  and 
the  grain  or  hay  is  rent,  and  the  landlord  has  no  interest  or  title  until 
they  are  delivered  to  him  as  rent."  Dockham  v.  Parker,  9  Greenl., 
lo7.     See  also  Caswell  v.  Dietrich,  15  Wend.,  379. 

These  views  it  is  believed  are  most  in  accordance  with  the  under- 
standing of  landlords  and  tenants,  when  property  is  let  on  shares 

The  tenant  in  such  cases  never  supposes  that  he  has  a  right  to  sell 
the  whole  crop  as  his  own,  nor  docs  the  landlord  conceive  for  a  moment 
that  an  execution  against  his  tenant  may  sell  the  whole  crop.  The 
sheriff  who,  on  an  execution  against  either  landlord  or  tenant,  when 
the  premises  are  let  to  the  shares,  sells  the  whole  crop,  is  liable  in 
trespas.s,  according  to  Dinohart  v.  Wilson.  Where  the  contract  is  in 
form  a  lease,  the  tenancy  in  common,  spoken  of  in  Putman  v.  Wise, 
is  a  tenancy  in  common  of  the  crops,  not  of  the  premises. 


132  LANDLORD    A  Js"  D    T  E  X  A  X  T. 

However,  though  the  general  rule  is,  as  I  have  stated 
it,  that  a  rent  cannot  issue  out  of  an  incorporeal  heredita- 
ment, yet  there  are  one  or  two  exceptions  to  this  rule, 
of  w^hich  it  will  be  proper  to  take  notice. 

In  the  first  place,  it  is  laid  dowii  in  Bac.  Ah.  Rent 
(B),  where  the  authorities  uipon  the  subject  are  col- 
r*qq-i  lected,  that  though  a  reversion  or  remainder  *is 
an  incorporeal  hereditament,  so  that  it  can  only 
pass  by  grant,  yet  a  rent  reserved  upon  a  lease  of  it  is 
good,  for  although  the  lessor  cannot  distrain  during 
the  continuance  of  the  particular  estate  in  a  third 
party,  yet  there  is  a  possibility  of  his  doing  so  on  the 
determination  of  that  particular  estate.  Again,  though 
tithes  are  incorporeal  hereditaments,  and  therefore  at 
common  law  no  rent  could  have  been  reserved  out  of 
them,  yet  stat.  5  Geo.  3,  c.  17,  directs  that  leases  by 
ecclesiastical  persons  of  tithes  for  three  lives,  or  twenty- 
one  years,  shall  be  as  good  as  if  of  land,  and  that  an 
action  of  debt  shall  lie  for  the  rent  reserved.     And  it 

supporting  a  rent,  and  the  other  not,  it  will  be  taken  to  issue  wholly 
out  of  the  former.  See  the  cases  last  cited  j  Vin.  Ab.  Reservation 
{0) ;  Doubitofte  v.  Curteene,  Cro.  Jac.  452  ;  Emott  v.  Cole,  Cro- 
Eliz.  255;  and  Farewell  v.  Dickenson,  6  B.  &  C.  251,  (13  E.  C.  L. 
R.  124,).  But  although  the  rent  issues  in  these  cases  ont  of  the 
corporeal  hereditament  only  in  point  of  remedy,  it  is  considered  to 
issue  out  of  both  in  point  of  render ;  so  that  where  it  is  not  appor- 
tioned between  the  two  subjects  of  demise,  but  is  reserved  generally, 
and  the  contract  under  which  it  is  reserved,  not  being  under  seal, 
cannot  operate  as  a  demise  of  the  incorporeal  hereditament,  no  rent 
at  all  is  recoverable.  See  the  argument  in  the  Dean  of  Y>"indsor  v. 
Gover,  2  Saund  303 ;  Gardiner  v.  Williamson,  2  B.  &  Ad.  336,  (22 
E.  C.  L.  R.  145,) ;  Bird  v.  Higginson,  2  A.  &  E.  696 ;  (29  E.  C.  L. 
R.  321,) ;  S.  C.  6  A.  &  E.  824,  and  Meggison  v.  Lady  Glamis,  7 
Exch.  685.  Upon  the  same  principle,  where  premises  are  demised 
at  an  entire  rent,  and  a  portion  of  them  cannot  be  legally  let,  the 
whole  demise  is  void.     See  Doe  d.  Griffiths  v.  Lloyd,  3  Esp.  78. 


THE     REDDENDUM.  133 

may  admit  of  question,  whether  the  same  effect  be  not 
produced  on  tithes  in  the  hands  of  lay  impropriators, 
by  the  construction  of  stat.  32  Hen.  8,  c.  7,  sec.  7, 
which  put  them  on  the  same  footing  as  lands  in  many 
respects,  and  in  particular  with  regard  to  the  remedies 
for  their  recovery.^ 

Lastly,  the  Queen,  if  she  think  proper,  may  r#Q_(-i 
*reserve  a  rent,  properly  so  called,  out  of  an  in- 
corporeal hereditament,  the  reason  for  which  is,  that 
she  may,  by  virtue  of  her  prerogative,  distrain  on  all 
her  tenants'  lands  wherever  situated ;  whereas  a  sub- 
ject can  only  distrain  upon  the  land  demised.^ 

The  third  point  to  be  observed  with  regard  to  the 
reddendum^  is  that  the  rent  must  be  reserved  to  the 
lessor  himself^  not  to  a  third  party.  The  reason  of  this 
is,  that  the  rent  is  looked  on  as  a  compensation  for  the 
land,  and  therefore  ought  to  be  reserved  to  the  person 
who  would  have  had  the  land  if  it  had  not  been  de- 
mised ;  and  accordingly  it  is  laid  down  by  Littleton, 

*  Since  the  Tithe  Commutation  Acts,  leases  of  tithes  cannot  occur. 
See  the  6  &  7  Wm.  4,  c.  71,  which  has  been  amended  and  extended 
by  numerous  later  acts.  It  was  provided  by  s.  88  of  this  statute, 
that  it  should  be  lawful  for  any  lessee  being  in  the  occupation  of 
tithes  commuted  under  the  act,  to  surrender  his  lease  so  far  as 
related  to  the  tithes,  subject  to  any  compensation  to  the  tenant  for 
the  loss  of  the  tithes,  and  to  the  landlord  for  the  non-fulfilment  of 
any  conditions  contained  in  the  lease,  and  to  such  a  deduction  from 
the  rent  payable  in  respect  of  any  other  hereditaments  included  in 
the  lease,  as  might  be  fixed  by  the  tithe  commissioners.  It  has  been 
held  that  a  lessee  of  tithes  who  does  not  avail  himself  of  this  section, 
is  still  liable  upon  his  covenant  to  pay  rent,  although  the  tithes  have 
been  commuted  for  a  rent  charge  under  these  acts.  Tasker  v.  Bull- 
man,  3  Exch.  351. 

^  Co.  Litt.  -47  a;  Bac.  Ab.  Rent  (B) ;  and  see  as  to  the  distinc- 
tions which  exist  between  the  grants  of  the  Crown  and  those  of 
subjects,  Knight's  Case,  5  Hep.  54. 


134  LANDLORD    AND    TENANT. 

sec.  346,  "  That  no  rent-service  can  be  reserved  upon 
any  feoffment,  gift,  or  lease,  to  any  person  but  the 
feoffor,  donor,  or  lessor,  or  their  heirs,  and  in  no  manner 
to  a  stranger."  Thus  in  Gates  v.  Frith,  Hob.  130, 
where  a  man  made  a  lease  for  years  of  land,  to  begin 
after  his  own  death,  rendering  rent  to  his  son,  the  rent 
was  held  to  be  improperly  reserved,  although  it  turned 
out  that  his  son  was  heir,  and  would  have  been  en- 
titled to  the  rent  had  it  been  reserved  in  proper  form, 
namely,  to  the  heirs  of  the  lessor}^ 

^°  The  lease  in  this  case  appears  to  have  been  made  by  the  father 
and  the  son,  and  the  term  was  to  commence  after  the  death  of  the 
father.  See  the  case ;  see  also  Doe  d.  Barber  v.  Lawrence,  4  Taunt. 
23.  The  words  of  Littleton,  in  s.  346,  are  "  that  no  rent,  [ichicJi 
is,  pro'perlij  said,  a  reni^  may  be  reserved,  &c.,  but  only  to  the 
feoffor,  or  to  the  donor,  or  to  the  lessor,  or  to  their  heirs,  and  in  no 
manner  it  may  be  reserved  to  any  strange  person."  It  would  seem 
that,  where  the  reservation  is  to  a  stranger,  although  the  payment 
reserved  is  not,  properly  speaking,  a  rent,  and  cannot  be  distrained 
for,  such  a  reservation  is  binding  as  a  contract.  See  Jewel's  Case, 
5  Rep.  3.  Another  requisite  to  a  rent,  properly  so  called,  is  that 
the  reservation  should  be  certain.  It  is,  however,  sufficient  if  the 
amount,  although  not  actually  fixed  in  the  reservation,  is  ascertainable 
by  it.  Co.  Litt.  142  a.  Lord  Coke  lays  down  this  rule  in  the  fol- 
lowing terms  :  <'  It  is  a  maxim  in  law,  that  no  distress  can  be  taken 
for  any  services  that  are  not  put  into  a  certainty,  nor  can  be  reduced 
to  any  certainty  ;  for  id  cerium  est  quod  certuni  redd i potest. 
And  yet  in  some  cases  there  may  be  a  certainty  in  uncertainty ;  as  a 
man  may  hold  of  his  lord  to  shear  all  the  sheep  depasturing  within 
the  lord's  manor,  and  this  is  certain  enough,  albeit  the  lord  hath 
sometimes  a  greater  number, -^nd  sometimes  a  lesser  number  there  ; 
and  yet  this  uncertainty,  being  referred  to  the  manor  which  is. 
certain,  the  lord  may  distrain  for  this  uncertainty.  Et  sic  de  simili- 
hus."  Co.  Litt.  9G  a.  See  also  Parker  v.  Harris,  1  Salk.  262 ; 
Orby  V.  Mohun,  2  Vern.  531;  Riseley  i:  Ryle,  11  M.  &  W.  16;* 
Daniel  v.  Gracie,  6  Q.  B.  145,  (51  E.  C.  L.  11.  145,) ;  Reg.  v.  West- 
brook,  10  Q.  B.  178,  (59   E.  C.  L.  R.  178,);  Pollitt  v.  Forrest,  11 


THE    COVENANTS.  135 

We  now  come,  in  the  fourth  place,  to  the  *cove-    r*q  ^-i 
na7iis,  which  usually  are  inserted  after  the  red- 
dendum.     A  covenant  is  the  name  which  we  give,  when 
we  find  it  contained  in  a  deed,  to  that  which,  if  we 
found  it  in  an  instrument  not  under  seal,  we  should 
denominate  a   promise  or  agreement.     No  particidar 
words  are  necessary  to  constitute  one.     It  is  sufficient 
that  they  be  such  as  show  the  intention  of  the  party 
to  bind  himself  to  the  performance  of  the  matter  stipu- 
lated for ;  thus  the  reddendum,  or  clause  reserving  the 
rent,  usually  *runs  in  this  way : — Yielding  and    r*Q^-i 
paying  therefor,  yearly  and  every  year  during 
the  said  term,  unto  the  lessee  (naming  him),  his  execu- 
tors, administrators,  or  assigns,  the  clear  yearly  rent,  or 
sum  of  so  much  of  lawful  money  of  Great  Britain,  pay- 
able quarterly  (or  half-yearly  as  the  case  may  be),  on 
such  and  such  days  (naming  them).     Now,  besides  this 
reddendum  clause,  there  is,  in  every  well-drawn  lease 
by  deed,  an  express  covenant  by  the  lessee  to  pay  the 
rent  reserved,  but  even  if  there  were  not,  the  words 
yielding  and  jjayimj  in  the  reddendum^  would  amount 
to  a  covenant,  and  an  action  of  covenant  could  be  main- 
tained upon  them  by  the  lessee,  in  case  of  non-payment, 
See  Hellier  v.  Casbard,  1  Sid.  266;  Giles  v.  Hooper, 
Carth.  135;  Porter  v.  Swetnam,  Styl.  406.^^  {a) 

Q.  B.  949,  (63  E.  C.  L.  E.  949,).  In  Daniel  v.  Gracie,  a  marl  pit 
and  brick  mine  were  demised,  and  the  tenant  agreed  to  pay  so  mucli 
a  quarter  for  every  yard  of  marl  that  he  might  get,  and  an  additional 
sum  of  money  for  every  thousand  bricks  that  he  might  make.  It 
was  held  that  this  reservation  was  sufficiently  certain,  and  that  the 
rent  might  be  distrained  for. 

"  As  is  stated  in  the  text,  no  particular  form  of  words  is  requisite  to 

(a)  The  words  "  yielding  and  paying  "  create  an  implied  covenant. 
Rayer  v.  Ake,  3  Penna.  R.,  466;  Webb  v.  Russel,  3  T.  11.,  402; 
Mills   V.  Awriol,  4  T,  11.,  98;  Yyvyan  v.  Arthur,  1  Barn.  Cress., 


136  LANDLORD    AND    TENANT. 

r*q'*'-|        *There  are  a  variety  of  covenants  usually  in- 
serted in  leases  of  particular  species  of  property, 

constitute  a  covenant.  This  rule  is  illustrated  by  the  following  cases, 
to  which  it  is  not  necessary  to  refer  here  in  detail : — Courtney  v. 
Taylor,  6  M.  &  Gr.  851,  (46  E.  C.  L.  R.  851,) ;  Rigby  v.  The 
Great  Western  Railway  Co.,  14  M.  &  W.  811;*  Wood  v.  The  Cop- 
per Miner's  Co.,  7  C  B.  90G,  (62  E.  C.  L  R.  906,) ;  Rashleigh  v. 
The  South  Eastern  Railway  Co.,  10  C.  B.  612,  (70  E.  C.  L.  R.  612,) ; 
and  the  Great  Northern  Railway  Co.  v.  Harrison,  12  C.  B.  576,  (74 
E.  C.  L.  R.  576,).  In  Cannock  v.  Jones,  3  Exch.  233,  a  lease  con- 
tained a  covenant  by  the  tenant  to  keep  all  the  windows  belonging  to 
the  demised  premises,  and  certain  other  matters  particularly  men- 
tioned, in  repair,  "  the  farm-house  and  buildings  being  previously  put 
in  repair  and  kept  in  repair"  by  the  landlord.  It  was  held  that  these 
words  constituted  an  absolute  and  independent  covenant  on  the  part 
of  the  landlord  to  put  the  farm  house  and  buildings  into  repair.  See 
also  Neal  v.  Ratcliff,  15  Q.  B.  916,  (69  E.  C.  L.  R.  916,)  where  a 
stipulation  of  this  kind  was  held  to  be  a  condition  precedent,  not  an 
independent  covenant ;  and  ^ms^,  Lect.  VII.  Covenants  are  to  be 
construed  according  to  the  apparent  intention  of  the  parties,  looking 
to  the  whole  instrument  and  to  the  context  {ex  anieccdentibus  et 
consequent  thus)  and  according  to  the  reasonable  sense  and  construction 
of  the  v/ords.  See  Plowd.  829  ;  and  the  judgment  of  Lord  Ellen- 
borough  in  Tggulden  v.  May,  7  East.  241.  So  that  a  covenant  is 
broken  if  the  intention  is  not  carried  out,  although  it  may  be  kept  to 


416;  Iggalden  v.  May,  9  Ves.,  330;  Church  v.  Brown,  15  Ves., 
264;  Kunckle  v.  Wynick,  1  Dall.,  307  ;  Kimpton  v.  Walker,  9  Ves., 
191 :  Walker  v.  Physick,  5  Barr,  202.  Rawle  on  Covenants  for 
Title,  472,  in  note,  where  the  following  language  is  used  : — "  This 
question  has  practically  some  importance,  as,  if  the  covenant  is  to  be 
deemed  an  express  one,  the  lessee  is  still  bound  to  his  lessor  for  the 
rent,  notwithstanding  an  assignment  of  the  term,  and  acceptance  of 
the  rent  by  the  lessee  from  the  assignee  (Mills  v.  Awriol) ;  while,  if 
the  covenant  is  merely  implied,  the  liability  for  rent  is  but  co-extensive 
with  the  occupation,  and  the  lessee  is  not  liable  for  the  rent  accruing 
after  his  assignment  to  another,  and  the  acceptance  of  the  rent  by  his 
lessor  from  the  latter."     Walker  v.  Physick,  6  Barr,  202. 


THE    COVENANTS.  137 

and  which  will  be  found  varied  to  suit  the  nature  of 
the  property,  the  length  of  the  term,  and  other  circum- 
stances/^ Thus,  in  the  lease  of  a  to^vii-house,  besides 
the  lessee's  covenant  to  pay  rent,  you  will  fre-  r#nQ-] 
quently  find  a  covenant  by  him  to  pay  *the  pa- 

the  letter.  See  Com.  Dig.  Covenant  (E  2),  where  it  is  said,  *'  If  a 
man  acts  contrary  to  the  intention  of  his  covenant,  it  shall  be  a 
breach,  although  he  performs  the  words  of  his  covenant  5  as  if  a  man 
covenants  to  leave  all  the  trees  upon  the  land,  and  he  cuts  them 
down  and  leaves  them  there  ;  if  a  brewer  covenants  to  deliver  all  his 
grains  for  the  cattle  of  the  plaintiff,  and  he  puts  hops  to  them  before 
delivery."  In  Griffith  v.  Goodhaud,  Sir  T.  Rayra,  464 ;  Piatt  on 
Gov.  55,  et  seq.;  and  Dormay  v.  Borradaile,  5  C.  B.  380,  (57  E.  C. 
L.  R.  380,)  numerous  instances  are  given  of  covenants  which  have 
received  a  larger  interpretation  than  the  words,  taken  literally,  would. 
warrant.  See  also  Borradaile  v.  Hunter,  5  M.  &  Gr.  639,  (44  E.  C. 
L.  R.  335,) ;  and  Clift  v.  Schwabe,  3  C.  B.  437,  (54  E.  C.  L.  R. 
437,).  Under  the  8  &  9  Vic.  c.  124,  which  has  been  already  men- 
tioned, and  the  8  &  9  Vic.  c.  119,  covenants  framed  according  to  the 
forms  given  by  those  statutes  have,  in  leases  and  conveyances  made 
in  pursuance  of  them,  a  peculiar  force  and  meaning. 

^2  It  may  be  convenient  to  mention  here,  that  the  non-execution 
of  a  lease  by  the  lessor  affords  an  answer  to  any  action  on  those  cove- 
nants on  the  part  of  the  lessee,  which  depend  on  the  interest  intended 
to  be  granted  by  the  lease,  and  which  are  made  because  the  covenan- 
tor has  that  interest :  such,  for  instance,  as  covenants  to  repair,  or 
to  pay  rent.  See  the  judgment  in  Pitman  v.  Woodbury,  3  Exch.  12  ; 
and  Swatman  v.  Ambler,  8  Exch,  72  ;  see  also  Aveline  v.  Whisson, 
4  M.  &  Gr.  801,  (43  E.  C.  L.  R.  414,)  ;  and  Cooch  v.  Goodman,  2 
Q.  B.  580,  (42  E.  C.  L.  R.  817,).  But  a  covenantee  in  an  ordinary 
indenture,  who  is  a  party  to  it,  (and  since  the  8  &  9  Vic.  c.  106,  s.  5, 
it  would  seem  even  if  he  is  not  a  party,  provided  the  covenant  respects 
any  tenements  or  hereditaments),  may  sue  the  covenantor  although 
the  former  have  not  executed  the  deed.  And  this  is  so  even  where 
the  deed  contains  cross  covenants  on  the  part  of  the  covenantee, 
which  are  stated  to  be  the  consideration  for  the  covenants  on  the  part 
of  the  covenantor.  See  Morgan  v.  I'ike,  14  C.  B.  473 ;  and  the 
judgment  in  Pitman  v.  Woodbury,  3  Exch.  12. 


138  LANDLORD    AND    TENANT. 

["*99]    risli  rates  and  parliamentary  taxes/^(a)  to  *keep 

^•^  No  mention  is  made  in  the  later  portion  of  these  lectures  of 
covenants  to  pay  taxes,  so  that  it  may  be  convenient  to  call  attention 
here  to  some  of  the  decisions  upon  this  subject.  A  covenant  to  pay 
a  rent  charge  without  deducting  any  taxes,  extends  to  subsequently 
imposed  taxes  of  the  same  nature  as  those  in  existence  at  the  time  of 
the  making  of  the  covenant,  but  not  to  taxes  of  a  different  nature. 
Brewster  i:  Kitchell,  1  Salk.  198 ;  S.  C.  1  Lord  Raym.  317.  Where 
a  tenant  covenanted  to  pay  the  rent  "  without  any  deduction,  defalca- 
tion, or  abatement  for  or  in  any  respect  whatsoever,"  it  was  held  that 
he  was  liable  to  pay  the  land  tax.  Bradbury  v.  Wright,  2  Dougl. 
624  •  see  also  Amfield  v.  White,  Ry.  &  Moo.  246,  (21  E.  C.  L.  K. 
743,).  In  Payne  v.  Burridge,  12  M.  &  W.  727,*  a  local  act  of  par- 
liament authorised  the  commissioners  appointed  under  it  to  pave 
certain  footways,  and  directed  that  the  costs  of  the  works  should  be 
paid  by  the  tenants  or  occupiers  of  the  next  adjoining  houses.  It 
also  provided,  that  in  default  of  payment  the  amount  might  be  levied 
upon  the  tenants  or  occupiers  by  distress,  and  that  they  might  deduct 
the  costs  so  paid  out  of  their  rent.  A  tenant  of  one  of  the  adjoining 
houses  had  covenanted  with  his  landlord  to  pay  his  rent  "  free  and 
clear  from  all  manner  of  parliamentary,  parochial,  and  other  rates, 
taxes  and  assessments,  deductions  or  abatements  whatsoever."  It 
was  held  that  under  this  contract,  the  tenant  was  bound  to  bear  the 
paving  expenses.  In  another  case  where  a  tenant  covenanted  to  pay 
<<all  parliamentary,  parochial,  and  other  taxes,  tithes  and  assessments, 
now  or  hereafter  to  be,  issuing  out  of  all  or  any  of  the  premises  here- 
by demised,  or  payable  by  the  landlords  or  tenants  thereof  for  the 
time  being;"  it  was  held  that  he  was  liable  to  pay  a  rent-charge 
imposed  on  the  premises  in  lieu  of  the  land  tax,  which  had  been 
purchased  by  a  previous  tenant,  under  the  42  Geo.  3,  c.  116.  Gov- 
ernors of  Christ's  Hospital  v.  Harrild,  2  M.  &  Gr.  707,  (40  E.  C.  L. 
R.  817,).  In  Baker  v.  Grcenhill,  3  Q.  B.  148,  (43  E.  C.  L.  R.  672,) 
a  landlord  was,  with  other  landowners,  liable  to  repair  a  bridge, 
rutione  tenuras.     The  tenant  of   the  land  had  covenanted  to  pay  the 

(a)  When  no  mention  of  taxes  is  made  in  the  lease  they  are  pay- 
able by  the  tenant,  and  do  not  constitute  a  set  off  to  the  payment  of 
rent.     Hughes  v.  Young,  5  Gill.  &  Johns.  67. 


THE    COVENANTS.  139 

the     premises    in    repair,    and    to    yield    tliem    up 

rent  "  free  and  clear  of  and  from  any  land   tax,  and  all  other  taxes 
and  deductions  whatsoever,   either  parliamentary   or  parochial,  now 
already  taxed  or  imposed,  or  hereafter  to  be  taxed,  charged  or  im- 
posed upon    the  demised   premises,   or  upon  the  tenant,   his  heirs, 
executors,  administrators,  or  assigns  in  respect  thereof,  the  landlord's 
property  tax  or  duty  only  excepted."     Some  local  acts  of  parliament 
reciting  the  liability  of  the  landlord  ratione  tenuree,  had  enacted  that 
he  and  the  other  land-owners  who  were  liable  should  keep  the  bridge 
in   repair,  and   had  enabled  them  to   raise   the  requisite   money  by 
rates  among  themselves,  according  to  the  value  of  the  lands  charge- 
able, and  had  given  them  a  power  to  levy  the  amount,  if  necessary, 
by  distress.     It  was   held  that  the  liability  to   contribute   to  these 
repairs  did  not,  by  the  operation  of  the  local  acts,  become  a  parlia- 
mentary tax  or  deduction  within  the  meaning  of  the  covenant'  of  the 
tenant.     "We   are  of  opinion,"  said  the  Court,  "  that  the  acts  of 
Parliament  for  enabling  the  persons  interested  to  raise   the  necessary 
funds  for  the  repairs  of  the  bridges  by  contribution   amongst  them- 
selves, do  not  impose   any  tax  within  the   meaning  of  the  covenant. 
The  charge  was  already  created,  and  the  acts  merely  supply  a  more 
convenient  mode  for  raising  the  necessary  funds  to  meet  it."     It  has 
been  held  that  a  covenant  to  pay  taxes  on  the  land  does  not  extend 
to  church  and  poor  rates,  for   these  are  personal  charges.     Theed  v. 
Starkey,   8  Mod.  314.     A  sewers  rate  is   not  a  parUamentary  tax 
within  covenants  of  this   description.     Palmer   r.  Earith,  14  M.  & 
W.  428.*     "  It  is  quite  clear,"  said  Baron  Parke  in  this  case,  "  on 
the  authority  of  Lord  Holt,  in  Brewster  v.  Kitchell  that  sewers  rates 
are  not  to  be  considered  as  jyarliamentury  taxes.     A  parliamentary 
tax  is  one  that  is  imposed  directly  by  act  of  parliament."     It  would 
seem,  that  a  county  rate  is  a,  ^Mrochial  tax.  Beg.  v.  Inhabs.  of  Ayles- 
bury, 9  Q.  B.  261,  (58  E.  C.  L.  11.  261,).     Where  a  tenant  covenants 
to  pay  rates  and  taxes,  and  omits  to  do   so,  it  is  not  necessary  that 
the  landlord  should  demand  them  from  him  before  he  can  avail  him- 
self of  a  proviso  for  re-entry  in  respect  of  this  covenant.     Davis  v. 
Burrell,  10   C.  B.  821,  (70  E.  C.  L.  B.  821,).     The  Property  and 
Income  Tax  Act  (the  5  &  6  Vic.  c.  35  extended  by  the  17  Vic.  c.  10), 
imposes  a  tax    upon   landlords  in   respect  of  their   property  under 
lease.     This  tax  is  payable,  in  the  first  instance,  by  the  tenants,  who 


140  LANDLORD    AND     TENANT. 

[*100]    *so  at  the  end  of  the  term  ;^*  frequently,  too, 

are  empowered  to  deduct  it  from  their  rent.  By  s.  73  of  this  act  no 
contract,  covenant  or  agreement  between  the  hmdlord  and  tenant,  or 
any  other  persons,  touching  the  payment  of  taxes  and  assessments, 
to  be  charged  on  their  respective  premises,  is  to  be  deemed  to  extend 
to  the  duties  charged  thereon  under  the  act,  or  to  be  binding  con- 
trary to  the  intent  and  meaning  of  the  act,  but  all  such  duties  are  to 
be  charged  upon  and  paid  by  the  respective  occupiers,  subject  to  such 
deductions  and  repayments  as  are  allowed  by  the  act,  which  deduc- 
tions, &c.,  are  to  be  made  and  allowed  notwithstanding  such  contracts, 
covenants  or  agreements.  It  has  been  held  under  this  act  that  where 
a  tenant  pays  the  property  tax  assessed  upon  the  premises,  and  omits 
to  deduct  it  from  his  next  payment  of  rent,  he  cannot  afterwards 
recover  the  amount  as  money  paid  to  the  use  of  the  landlord.  Gum- 
ming V.  Bedborough,  15  M.  &  W.  438.*  Under  the  Tithe  Commu- 
tation Acts,  the  rent-charge  which  is  substituted  in  lieu  of  the  tithes 
is  charged  upon  the  land,  and  may  be  recovered  by  distress.  Neither 
the  landlord  or  the  tenant  is,  under  these  statutes,  personally  liable 
to  pay  it;  but  if  the  latter  pays  it,  he  may  deduct  it  from  his  rent, 
unless  he  has  agreed  with  his  landlord  to  take  the  charge  upon  him- 
self. See  the  6  &  7  Wm.  IV.  c.  71,  ss.  67,  80,  81,  and  Griffenhoofe 
V.  Daubuz,  24  L.  J.  Q.  B.  20.  By  the  14  &  15  Vic.  c.  25,  however, 
a  convenient  remedy  is  given  to  the  landlord  or  succeeding  tenant, 
who  is  obliged  to  i^ay  the  rent-charge,  which  ought  to  have  been  paid 
by  the  previous  tenant.  It  is  provided  by  s.  4  of  this  act  that,  "  if 
any  occupying  tenant  of  land  shall  quit,  leaving  unpaid  any  tithe 
rent-charge  for  or  charged  upon  such  land,  which  he  was  by  the 
terms  of  his  tenancy  or  holding  legally  or  equitably  liable  to  pay, 
and  the  tithe  owner  shall  give  or  have  given  notice  of  proceeding  by 
distress  upon  the  land  for  recovery  thereof,  it  shall  be  lawful  for 
the  landlord,  or  the  succeeding  tenant  or  occupier,  to  pay  such  tithe 
rent-charge,  and  any  expenses  incident  thereto,  and  to  recover  the 
amount  or  sum  of  money,  which  he  may  so  pay  over,  against  such 
first-named  tenant  or  occupier,  or  his  legal  representatives,  in  the 
same  manner  as  if  the  same  were  a  debt  by  simple  contract  due  from 
such  first-named  tenant  or  occupier  to  the  landlord  or  tenant  making 
such  payment." 

^■^  See  post,  Lecture  VIII. 


THE    COVENANTS.  141 

he  covenants    to   keep  tlie  premises  insured,^ '^  not  to 

^^  As  questions  upon  covenants  to  insure  are  of  frequent  occurrence 
in  practice,  and  this  subject  does  not  occur  again  in  these  lectures,  it 
may  be  useful  to  insert  here  some  of  the  cases  upon  it.  The  ordinary 
covenant  to  insure  and  keep  insured  is  broken  if  the  premises  are  left 
uninsured  for  any  time,  however  short.  Doe  d.  Pitt  v  Shewin,  3 
Camp.  134.  and  see  also  Doe  d.  Darlington  v.  Ulph,  13  Q.  B.  204, 
(06  E.  C.  L.  R.  204,).  The  breach  of  covenant  by  non-insurance  is 
a  continuing  breach,  and  the  receipt  of  rent  by  the  landlord,  after 
the  commencement  of  the  non-insurance,  waives  only  that  portion 
of  the  breach  which  has  then  actually  occurred.  Doe  d.  Muston  v. 
Gladwin,  6  Q.  B.  953,  (51  E.  C.  L.  R.  953,).  In  this  case,  which 
is  a  very  strong  illustration  of  this  rule,  the  tenant  had  covenanted 
to  insure  the  demised  premises,  and  to  keep  them  insured  in  the  joint 
names  of  the  landlord  and  of  himself,  and  the  lease  contained  a  pro- 
viso for  re-entry  upon  the  breach  of  any  of  the  covenants.  The  tenant 
insured  in  his  own  name  only,  but  he  showed  the  policy  to  the  landlord, 
who  approved  of  it,  and  accepted  rent  during  the  next  three  years  up  to 
Christmas,  1842.  The  premium  paid  by  the  tenant  at  that  period 
covered  the  year  1843.  In  January,  1843,  the  landlord  assigned  his 
reversion,  and  in  that  year  the  assignee  brought  ejectment  for  the  for- 
feiture caused  by  the  non-insurance  in  the  joint  names  of  the  landlord 
and  tenant.  It  was  held  that  the  lease  was  forfeited,  althou^  no 
notice  had  been  given  to  the  tenant  to  alter  the  policy.  Penniall  v. 
Harborne,  11  Q.  B.  3(38,  (03  E.  C.  L.  B.  368,)  was  also  a  case  of 
considerable  hardship  upon  the  tenant.  In  this  case  the  lessee 
covenanted  to  insure  the  demised  premises  "  from  time  to  time,  and 
at  all  times  during  the  continuance"  of  the  term,  in  the  joint  names 
of  the  lessors,  and  the  lease  contained  a  proviso  for  re-entry,  if  any 
of  the  covenants  were  broken.  The  lessee  left  a  part  of  the  premises 
uninsured  for  two  months  after  the  execution  of  the  lease.  This  was 
held  to  be  a  breach  of  covenant,  by  which  the  lease  was  forfeited, 
although  it  appeared  that  the  greater  part  of  the  premises  had  been 
insured  by  the  lessee,  for  the  amount  required  by  the  lease  as  to  that 
portion,  under  a  policy  expiring  at  the  end  of  the  two  months,  and  on 
the  expiration  of  this  policy,  he  had  insured  the  whole  of  the  pre- 
mises for  the  full  amount.  It  was  also  held,  in  this  case,  that  the 
lease  was  forfeited  by  reason  of  the  lessee  having  insured  in  his  own 


142  LANDLORD    AND    TENANT. 

^  ^  *assign  or  underlet  without  license,^''  not  to 
carry  on  an  offensive  trade,^'^  and  not  unfre- 
quently  for  other  matters.  On  the  other  hand,  the  lessor 
r*in9T  *iJ^siially  covenants  that  the  lessee  shall  quietly 
enjoy  free  from  interruption  by  himself,  or  any 
person  la^vfully  claiming  under  him.^^  With  regard, 
however,  to  the  duties,  the  performance  of  which  is 
secured  by  these  covenants,  I  think  it  better  to  post- 
pone any  consideration  of  them  for  the  present,  and  to 
speak  of  them  more  fully  when  I  come  to  consider 
those  points  which  relate  to  things  which  are  to  be 
done  during  the  lease,  since  the  performance  of  some 
of  them  will,  to  a  certain  extent,  be  provided  for  by 
the  law,  even  if  there  were  no  express  stipulations  en- 
tered into  between  the  parties.  And,  by  postponing 
the  subject,  I  shall  be  able  to  treat  it  altogether,  Jirst 
pointing  out  the  law,  as  it  would  stand  if  there  were 
no  express  contracts,^^  and  then  showing  how  it  has,  in 
ordinary  cases,  become  usual  to  modify  it."^ 

With  regard  to  covenants  in  general,  there  is  one 
broad  distinction  which  prevails  amongst  them  when 
inserted  in  leases.     'I  allude  to  the  distinction  between 

name  jointly  with  those  of  the  lessors,  although  the  14  Geo.  3,  c.  78, 
s.  83,  (which  section  is  still  in  force,  see  the  7  &  8  Vic.  c.  84,  Sched. 
(A) ),  enables  any  person  interested  in  the  buildings  insured  to 
require  the  insurance  company  to  cause  the  insurance  money  to  be 
laid  out  in  rebuilding. 

^^  See  as  to  conditions  not  to  SLSs\gn,  post,  p.  115, 
^''  See  as  to  contracts  not  to  carry  on  offensive  trades,  Doe  d. 
Gaskell  v.  Spry,  1  B.  &  A.  617;  Jones  v.  Thorne,  1  B.  &  C.  715, 
(8  E.  C.  L.  R.  302,) ;  Doe-^?.  Wetherell  r.  Bird,  2  A.  &  E.  161,  (29 
E.  C.  L.  R.  92,) ;  and  Simons  v.  Farren,  1  Bing.  N.  C.  12G,  (27  E. 
C.  L.  R.  572,). 

18  Post,  Lecture  VII. 

19  Post,  Lecture  VII. 

20  Post,  Lecture  VII. 


THE    COVENANTS.  143 

those  which  do,  and  those  which  do  not,  run  with  the 
land  upon  the  one  hand,  and  with  the  reversion  upon 
the  other.  This  is  a  very  important  distinction  in 
practice,  since,  in  case  of  an  assignment  of  the  lease, 
upon  the  one  hand,  or  of  the  reversion,  on  the  other, 
the  tenant's  rights  against  the  assignee  of  the  reversion, 
and  vice  versa  those  of  the  assignee  of  the  reversion 
against  the  tenant,  altogether  depend  upon  it.  This 
is,  however,  *likewise  a  subject,  the  considera-  r*iAq-| 
tion  of  which  I  think  it  best  to  postpone,  since 
it  appears  to  me,  that  it  will  fall  more  naturally  under 
the  fourth  head  into  which  at  starting  I  divided  the 
entire  subject,  namely.  The  consequences  of  an  alteration 
of  the  parties  to  the  demise  hy  the  assignment  of  the  lessor 
or  that  of  the  lessee^  or  ofherivise.'^^  I,  therefore, '  now 
pass  on  to  the  last  of  the  five  component  parts  of 
the  lease,  and  this  comprises  any  excejjtions  out  of 
the  demise,  and  any  provisoes  or  conditions  which  the 
parties  to  it  may  think  fit  to  make.  The  most  common 
exception  is  that  of  timber  and  other  trees  growing 
upon  the  land  demised.  With  regard  to  this  it  has 
been  laid  down  in  Whilster  v.  Paslow,  Cro  Jac.  487, 
that,  by  an  exception  of  all  tooods^  the  soil  intervening 
between  the  trees  in  a  wooded  spot  would  be  excepted 
out  of  the  demise,  and  remain  vested  in  the  lessor,  but 
that,  by  an  exception  of  all  trees^  nothing  would  be 
comprehended,  except  the  exact  portion  of  earth 
which  the  trees  occupied.'^^   However,  in   a  late  case 

2^  Post,  Lecture  X. 

22  See  Co.  Litt.  4  b,  and  Liford's  Case,  11  Rep.  46.  The  words 
of  a  reservation  will  be  construed  with  reference  to  the  context  of  the 
deed,  and  may  be  qualified  by  it.  In  Pinconib  v.  Thomas,  Cro.  Jac. 
524,  one  of  the  closes  demised  consisted  of  a  wood,  and  the  lease 
excepted  all  saleable  woods  then  growing,  or  which  should  thereafter 
grow,  which  had  been  sold  by  the  lord  of  the  premises  with   free 


144  LAXDLORD    AND    TENANT. 

r*io4i  *^^  ^^^^^  ^'-  -^^^^'^'  ^  ^-  ^  ^^^^'  ^'-^^'  ^'-^^  ^'  ^' 

L.  R.  624,)  although  the  Court  admitted  this 

entry,  egress  and  regress  for  felling,  marking  and  carrying  off  the 
same,  at  all  times  convenient.  It  was  held  that  the  soil  of  the  wood 
was  not  excepted,  but  passed  to  the  lessee;  because  the  right  of 
entry  would  not  have  been  needed  if  the  whole  soil  had  been  reserved 
to  the  lessor.  This  is  explained  by  Mr.  Justice  Taunton  in  Legh  v. 
Heald,  1  B.  &  Ad.  628,  (20  E.  C  L.  R.  626,)  where  it  may  be 
observed  that  there  is  a  mistake  in  the  report  of  the  judgment  of 
the  learned  judge,  who  is  made  to  state  that  the  decision  in  Pincomb 
V.  Thomas,  was  that  the  soil  did  not  pass  to  the  tenant.  It  is  evident 
from  the  context,  that  the  mistake  is  in  the  report.  In  Doe  d. 
Eogers  v.  Price,  8  C.  B.  894,  (65  E.  C  L.  R.  894,)  a  lease  had  been 
granted  of  a  farm,  and  of  the  quarries  of  paving  and  tile  stone  in  and 
upon  the  premises,  subject  to  a  fixed  rent  for  the  farm,  and  to  a 
royalty  for  the  stone  obtained.  It  contained  an  exception  of  "  all 
timber  trees,  trees  likely  to  become  timber,  saplings,  and  all  other 
wood  and  underwood  which  now  are,  or  which  shall  at  any  time 
hereafter  be,  standing,  growing,  and  being  on  the  premises,  and  all 
mines,  minerals,  and  fossils  whatsoever,  which  shall  hereafter  be 
opened  and  found."  There  was  also  in  the  lease  a  covenant  by  the 
tenant  not  to  commit  any  waste,  spoil  or  destruction,  by  cutting 
down,  lopping,  or  topping  any  timber  trees,  or  trees  likely  to  become 
timber,  saplings,  or  any  other  wood  or  underwood.  The  assignee  of 
the  term  cut  down  some  saplings,  wood,  and  underwood,  for  the 
necessary  purpose  of  working  a  quarry  on  the  demised  premises.  It 
was  held  that  these  acts  did  not  amount  to  a  breach  of  the  contract 
of  the  tenant,  for  that  the  effect  of  the  lease  was  that  he  was  only 
bound  not  to  cut  any  of  the  excepted  trees,  so  that  the  cutting  should 
amount  to  an  excess  of  the  rights  ichich  it  was  intended  he  should 
exercise  ;  and  consequently  that  he  was  not  prohibited  from  cutting 
trees  in  a  manner  necessary  to  a  reasonable  exercise  of  the  power  to 
get  the  stone.  Where  a  lease  reserves  to  the  lessor  the  privilege  of 
hawking,  hunting,  fishing,  and  fowling  over  the  demised  premises, 
this  is  not  in  point  of  law  either  a  reservation  or  an  exception,  but  it 
is  a  privilege  or  right  granted  to  the  lessor,  although  words  of 
reservation  may  be  used.  See  the  judgment  in  Doe  d.  Douglas  v. 
Lock,  2  A.  &  E.  743,  (29  E.  C.  L.  R  342,) ;  Wickham  v.  Hawker, 


THE     COVENANTS.  145 

distinction,  yet  they  held,  that,  where  the  exception 
was  oi  all  timher^  and  other  trees^  ifood^  underwoods^  c&c, 
nothing  would  pass  except  the  soil  occupied  by  the 
trees,  for  that  though  the  words  wood  and  underwoods 
standing  alone  might  have  been  sufficient  to  convey 
the  intermediate  soil,  yet  that  coming  after  the  words 
*iimher,  and  other  trees,  they  must  be  held  to  r*-iA^-| 
have  been  meant  to  include  things  ejusdem 
generis,  and  not  to  have  a  more  extensive  effect  than 
those  which  preceded  them.  Mines  are,  in  mining 
coimties,  frequently  also  a  subject  of  exception.^" 

With  regard  to  provisoes  and  conditions,  which  are 
words  signifying,  almost  exactly,  the  same  thing,  a 
condition  being  denominated  a  proviso  merely  ,  on 
accoimt  of  the  word  with  which  it  usually  begins,  each 
of  these  expressions  alike  signifies,  some  quality  annexed 
to  a  real  estate,  hy  ivhich  it  may  he  defeated,  enlarged,  or 
created  upon  an  uncertain  event. ~^  The  only  difference 
between  them  is,  that  a  proviso  is  always  in  express 
words,  whereas  there  are  certain  conditions  which  the 
law  implies,  even  though  they  be  not  mentioned. 

These  implied  conditions  are  created  either  by  the 
common  or  the  statute  law."^     By  the  common  law,  it 

7  M.  &  W.  63;*  The  Durham  and  Sunderland  Railway  Co.  v. 
Walker,  2  Q.  B.  940,  (42  E.  C  L.  R.  988,) ;  and  Pannell  v.  Mill, 
3  C.  B.  625,  (54  E.  C.  L.  R.  625,). 

^^  Beds  of  stone  which  may  be  dug  by  winning  or  quarrying  are 
minerals.  See  The  Earl  of  Rosse  r.  Wainman,  14  M.  &  W.  859  f 
S.  C.  in  error,  2  Exch.  800;  and  Micklethwait  v.  Winter,  6  Exch. 
644. 

24  See  Litt.  ss.  328,  329;  Co.  Litt.  203  a;  Bac.  Ab.  Conditions 
(A) ;  and  Lord  Cromwell's  Case,  2  Rep.  69  b. 

2*  See  as  to  whether  any  conditions  can  be  implied  on  the  part  o 
the  landlord  as  to  the  state  of  the  premises,  pos<  Lecture  VII. ;  and 
as  to  what  is  implied  by  law  from  the  mere  relation  of  landlord  and 
tenant,  see  Granger  v.  Collins,  6  M.  &  W.  458  ;*  Jackson  v.  Cobbin, 

10 


146  LANDLORD    AND    TENANT. 

is  a  condition  annexed  to  every  estate,  that  the  grantee 
shall  not  during  its  continuance  commit  felony  or 
treason.^^     And  Lord  Coke  says,  in  his  1st  Inst.  233  b, 

r*10fil  ^^^'^^  ^^  *^^  ^  condition  annexed  to  every 
particular  estate,  that,  if  the  tenant  attempt 
to  make  an  alienation  in  fee-simple,  or  claim  in  a 
court  of  record  a  greater  estate  than  he  possesses,  he 
shall  thereby  forfeit  the  land,  and  the  reversioner  or 
person  in  remainder  may  enter. 

As  to  conditions  in  law  founded  on  statute — the 
principal  is  that  created  by  the  Mortmain  Act,  which 
renders  it  a  forfeiture,  even  on  the  part  of  tenant  in 
fee-simple,  to  attempt  to  aHen  in  mortmain,-' 

The  conditions,  however,  of  which  I  am  now  chiefly 
speaking  are  those  express  ones  also  called  provisoes, 
which  parties  are  in  the  habit  of  introducing  into  leases 
by  express  words. 

There  are  two  sorts  of  conditions, — conditions  prece- 
dent and  conditions  subsequent.  A  condition  precedent 
is  one  which  is  to  be  performed  before  the  estate  can 
commence.  For  instance,  if  A.  were  to  make  a  lease 
for  years  to  B.,  to  commence  from  the  1st  of  next 
month,  on  condition  of  B.'s  paying  him  on  or  before 
that  day  £100,  this  would  be  a  condition  precedent, 
the  payment  being  directed  to  take  place  before  the 
commencement  of  B.'s  estate,  so  that,  if  he  omitted  to 
pay,  the  estate  would  never  vest  in  him  at  all.^^ 

8  M.  &  W.  790  ;*  and  Messent  v.  Reynolds,  3  C  B.  194,  (54  E.  C. 
L.  R.  194,). 

26  Co.  Litt.  802  b ;  2  Inst.  36 ;  and  2  Black.  Comm.  260. 

27  See  the  9  Hen.  8,  c.  36,  the  later  Moi'tmain  Acts,  and  Com.  Dig. 
Condition  (R). 

28  See  Com.  Dig.  Condition  (B).  Numerous  cases  occur  in  the 
reports  as  to  conditions  precedent,  for  it  is  frequently  necessary,  in 
practice,  to  ascertain  ^vhether  particular  stipulations  inserted  in  con- 


THE    COVENANTS.  147 

*A  condition  subsequent  \^  one  which  either  r*iAry-i 
enlarges  or  defeats  an  estate  already  created — 
thus,  if  A.  were  to  make  a  lease  to  B.  for  seven  years, 
upon  condition  that,  if  he  paid  £100  to  A.  before  the 
1st  of  next  month,  he  should  have  a  lease  for  fourteen 
years ;  here  the  condition  would  be  one  subsequent  to 
the  commencement  of  the  estate,  which  its  perform- 
ance would  have  the  effect  of  enlarging.  So  again,  if 
A.  were  to  make  a  lease  for  fourteen  years  to  B.,  on 
condition  that  he  should  not  assign ;  here  would  be  a 
condition  subsequent,  for  B.  could  not  assign  the  term 
till  it  was  vested  in  him,  and  therefore  his  doing  so 
would  be  an  2iQi  suhsequent  to  the  commencement  of  his 
estate,  and  which  would  have  the  effect  of  defeating 
it.2^ 

tracts  are,  or  are  not,  of  this  cliaractcr.  It  is  not,  however,  necessary 
to  refer  here  at  length  to  these  decisions,  since  it  very  seldom  happens 
that  leases  are  framed  so  that  their  operation  depends  upon  a  condi- 
tion precedent,  and  the  covenants  in  ordinary  leases  rarely  contain 
provisions  of  this  nature.  The  question  whether,  in  ordinary  con- 
tracts, any  particular  provision  should  be  held  to  operate  as  a 
condition  precedent,  depends  upon  the  intention  of  the  parties  as 
apparent  on  the  contract,  and  not  upon  any  formal  arrangement 
of  the  words.  Generally  speaking,  any  stipulation  which  goes 
only  to  a  portion  of  the  consideration  of  the  contract,  that  is  to 
say  any  stipulation,  the  breach  of  which  would  deprive  the  party 
for  whose  sake  it  is  inserted  of  only  a  portion  of  the  henefit  of 
Tiis  contract,  will  be  construed  not  to  be  a  condition  precedent.  This 
is,  however,  only  a  rule  of  construction  to  be  applied  where  the 
contract  is  ambiguous.  See  Boone  v.  Eyre,  1  H.  Bl.  273,  note  (a), 
and  the  notes  to  Pordage  v.  Cole,  1  Wms.  Saund.  320  a,  and  to 
Cutter  V.  Powell,  2  Smith's  L.  C.  1. 

29  See  Com.  Dig.  Condition  (C) ;  Ughtred's  case,  7  Eep.  9  b. 
Where  a  rent-charge  was  devised  to  A.,  so  long  as  her  conduct  and 
behavior  should  be  discreet,  and  meet  with  the  approbation  of  B., 
it  was  held  that  the  discreetness  of  A.'s  conduct  and  the  approbation 
of  B.  were  conditions  subsequent.     Wynne  v.  Wynne,  2  M.  &  Gr.  8, 


148  LANDLORD    AND    TENANT. 

r*inft1  *^ow  the  conditions  which  usually  are  in- 
serted in  leases  for  years  are  of  this  latter  sort. 
They  usually  are  conditions  subsequent,  the  effect  of 
which  is  to  defeat  the  estate  in  case  of  a  breach  of  any 
one  of  them  being  committed.  And  those  with  which 
W'O  most  commonly  meet,  are  framed  for  the  pui'pose  of 
enforcing  the  due  payment  of  the  rent  reserved,  and  the 
performance  of  the  covenants  inserted  in  the  lea^e,  or  for 
the  purpose  of  restraining  the  lessee  firom  assigning  or 
underletting  the  demised  premises.'^^ 

Conditions  of  tliis  sort  are  usually  framed  in  one  of 

two  modes.     They  either  provide  that,  upon  breach  of 

the  condition,  it  shall  he  lav  fid  for  the  lessor  to  re-enter, 

r*inQl    ^^  that,  on  breach  of  it,  the  *lease  shall  cease, 

determine,  and  become  utterly  void  and  of  no  effect. 

(40  E.  C.  L.  R  464,).  So  where  an  annuity  was  given  to  a  woman 
for  life,  if  she  should  so  long  continue  a  widow,  this  was  held  to  be 
a  condition  subsequent.  Brooke  v.  Spong,  15  M.  &  W.  153.*  See 
also  as  to  the  distinction  between  conditions  precedent  and  subsequent, 
the  opinions  of  the  judges,  and  the  judgments  in  Egerton  v.  Earl 
Brownlow,  4  IT.  of  Lords,  C.  1. 

30  The  8  &  9  Vic.  c.  106,  s.  6,  provides  that  "  after  the  1st  day 
of  October,  1845,  a  contingent,  an  executory,  and  a  future  interest, 
and  a  possibility  coupled  with  an  interest,  in  any  tenements  or  here- 
ditaments of  any  tenure,  whether  the  object  of  the  gift  or  limitation 
of  such  interest  or  possibility  be  or  be  not  ascertained,  also  a  right 
of  entry,  whether  immediate  or  future,  and  whether  vested  or  contin- 
gent, into  or  iipon  any  tenements  or  hereditaments  in  Utigland,  of 
any  tenure,  may  be  disposed  of  hy  deed."  This  act  does  not  render 
assignable  a  right  to  re-enter  upon  premises  under  lease,  for  a  condi- 
tion broken.  It  applies  only  to  an  original  right  where  there  has 
been  a  disseisin,  or  where  a  party  has  a  right  of  entry,  and  nothing 
but  that  remains.  Hunt  v.  Bishop,  8  Exch.  675.  In  this  case  the 
word  "  re-enter"  had  been  left  out  by  mistake  in  the  proviso  for 
re-entry.  The  Court  appeared  to  think  that  the  omission  was 
immaterial. 


THE    COVENANTS.  149 

In  the  former  case,  that,  I  mean,  in  which  on  breach 
of  the  condition  it  is  provided  that  the  lessor  may  re- 
enter, it  was  always  held  that  if,  after  the  breach  had 
been  committed,  he  received  rent  which  had  become 
due  since  the  breach,  he  thereby  recognized  the  tenancy 
as  a  continuing  one,  and  could  not  be  allowed  after- 
wards to  take  advantage  of  the  condition.  Thus  in 
Goodright  v.  Davids,  Cowp.  803,  where  the  lease  con- 
tained a  covenant  not  to  underlet  without  license,  and 
also  a  proviso  that,  in  case  of  non-observance  of  the 
covenants,  the  lessor  might  re-enter,  the  covenant  was 
broken,  but  the  lessor  received  rent  which  had  accrued 
due  afterwards ;  it  was  held  that  he  had  thereby  waived 
his^  right  to  take  advantage  of  the  forfeiture.  Lord 
Mansfield  said,  "  To  construe  this  acceptance  of  rent 
due  since  the  condition  broken  a  waiver  of  the  for- 
feiture is  to  construe  it  according  to  the  intention  of 
the  parties.  Upon  the  breach  of  the  condition  the 
landlord  had  a  right  to  enter.  He  had  full  notice  of 
the  breach,  and  does  not  take  advantage  of  it;  but 
accepts  rent  subsequently  accrued.  That  shows  he 
meant  that  the  lease  should  continue.  Cases  of  for- 
feiture are  not  favored  in  law,  and  where  the  forfeiture 
is  once  waived,  the  Court  will  not  assist  it.  "(a)     See 

(a)  Forfeitures  are  not  favored  in  law.  When  the  lease  contem- 
plates any  action  by  the  landlord,  or  his  agency  is  in  any  way  involved 
in  the  act  which  is  to  work  a  forfeiture,  it  has  been  hold  that  he  must 
manifest  his  intention  to  insist  on  the  forfeiture  at  the  time.  When 
the  condition  of  the  lease  was  that  the  lessee,  at  the  end  of  each  year, 
should  give  security  for  the  next  year's  rent,  it  was  held  in  North 
Carolina,  that  a  failure  to  comply  with  the  condition  by  the  lessee  will 
not  work  a  forfeiture,  unless  the  lantllord  demand  performance  at  the 
end  of  the  year.  Tate  v.  Crowson,  6  Iredell,  65,  And  when  rent  is 
payable  on  a  day  certain,  it  must  be  demanded  on  the  premises,  and 
on  the  day.     Jones  v.  Keed,  15  N.  Ham.,  68;  Stoever  v.  Lessee  of 


150  LANDLORD    AND    TENANT. 

also  Roe  v.  Harrison,  2  T.  E..  425;  Doe  d.  Gatehouse 
V.  Rees,  4  Bing.  N.  C.  384,  (33  E.  C.  L.  E.  384,). 
Nor  is  acceptance  of  rent  the  only  means  by  whicl/the 
r*nm  ^^^^^^'  ^^y  waive  his  *right  to  take  advantage 
of  the  forfeiture.  Other  acts  on  the  part  of  the 
landlord,  recognizing  the  term  as  still  existing,  have 
been  held  to  have  the  same  effect  as  the  receipt  of  rent.(a) 
See  Doe  v.  Meux,  4  B.  &  C.  606,  (10  E.  C.  L.  R. 
722,) ;  Doe  v.  Birch,  1  M.  &  W.  402  ;*  Doe  cl  Baron 
Sc  Baroness  de  Rutzen  v.  Lewis,  5  A.  &  E.  277,  (31  E. 
C.  L.  R.  613,).  And  I  think  that  from  these  cases  we 
may  safely  draw  the  inference  that  any  act  upon  the 
part  of  the  lessor,  showing  an  unequivocal  intention  to 
treat  the  lease  as  subsisting,  has  the  effect  of  putting 
an  end  to  his  right  to  take  advantage  of  the  forfeiture.^^ 

^1  If  the  landlord  brings  ejectment  to  enforce  the  forfeiture,  or,  it 
seems,  if  he  does  any  other  unequivocal  act  indicating  his  in- 
tention to  avail  himself  of  the  option  given  him  to  determine 
the  lease,  and  this  option  is  communicated  to  the  lessee,  the  lease  is 
determined,  and  the   subsequent  receipt   of  rent  will  not  set  it  up 

Whitman,  6  Binn.  419;  McCormick  v.  Connell,  6  S.  &  R.,  151.— 
But  -when  forfeiture  for  non-payment  of  rent  at  the  day  is  occasioned 
by  accident  or  mistake,  the  Court  will  interfere  to  protect  the  tenant, 
on  his  bringing  the  amount  of  the  rent,  interest,  and  costs  into  Court 
for  the  landlord.  Atkins  v.  Chilson,  11  Met.,  112.  A  New  York 
Statute  provides  that  a  diversion  of  salt  works  to  other  purposes  than 
the  manufacture  of  salt  shall  work  a  forfeiture  of  the  lease-hold  estate ; 
upon  this  statute  it  has  been  decided  that  the  diversion  to  cause  a  for- 
feiture, must  be  a  diversion  of  the  whole,  that  building  a  dwelling 
house  on  portion  of  the  premises  would  not  cause  a  forfeiture.  Has- 
brook  V.  Paddock,  1  Barb.,  635. 

Where  a  lease  provides  that  if  the  rent  be  not  paid  at  the  day  ap- 
pointed, it  is  to  be  recovered  in  an  action  of  debt,  the  language 
precludes  the  idea  of  forfeiture.    De  Lancy  v.  Ga.  Nun.,  12  Barb.  125. 

(a)  See  Jackson  v.  Shelden,  5  Cow.  448 ;  Coon  v.  Brickett,  2  N. 
H.  103;  Newman  i:  Rutter,  8  Watts.  51. 


THE    COVENANTS.  151 

But  *as  I  have  already  stated,  the  condition,    r*i-|i-i 
instead  of  providing  that  112^071  hreacli  the  lessor 

again.  See  Doe  d.  Morecraft  v.  Meux,  1  C.  &  P.  346,  (12  E.  C  L. 
R.  207,)  and  Jones  v.  Carter,  15  M.  &  W.  718.*  In  the  last  men- 
tioned case  the  landlord  served  upon  the  tenant  a  declaration  in 
ejectment  for  a  forfeiture  by  reason  of  several  breaches  of  the 
covenants  in  the  lease.  The  Court  held  that  this  agt  operated  as  a 
final  election  on  the  part  of  the  landlord  to  determine  the  lease,  and 
that  he  could  not  afterwards  sue  for  rent  due,  or  in  respect  pf  cove- 
nants broken,  after  the  service  of  the  declaration,  although  there  had 
not  been  any  judgment  in  the  ejectment.  Where,  however,  a  breach 
of  covenant  is  continuing,  as,  for  instance,  where  a  tenant,  who  is 
bound  to  keep  the  premises  insured  at  all  times  during  the  demise, 
leaves  the  premises  uninsured  for  a  time,  the  receipt  of  rent  is  only 
a  waiver  of  that  portion  of  the  breach  which  has  occurred  at  the  time 
when  the  rent  is  received.  See  Doe  d.  Ambler  v.  Woodbridge,  9'  B. 
&  C.  376,  (17  E.  C.  L.  R.  173,) ;  Doe  d.  Flower  v.  Peck,  1  B.  & 
Ad.  428,  (20  E.  C.  L.  R.  546,) ;  Doe  d.  Muston  v.  Gladwin,  6  Q.  B. 
953,  (51  E.  C.  L  R.  953,) ;  and  Doe  d.  Baker  v.  Jones,  5  Exch. 
498.  In  the  last  of  these  cases  the  lessee  was  bound,  under  a 
penalty  of  forfeiture,  to  repair  the  demised  premises,  and  to  keep 
them  with  all  necessary  reparations  as  often  as  need  should  require 
during  the  term.  He  allowed  the  premises  to  be  out  of  repair,  and 
afterwards  the  landlord  received  rent.  The  tenant  then  proceeded  to 
pull  down  a  portion  of  the  buildings,  and  to  make  excavations,  with  the 
hand  fide  intention  of  repairing.  It  was  held  that  the  lease  was  for- 
feited, and  that  the  reasonable  time  for  reparation  did  not  commence 
afresh  after  the  receipt  of  the  rent.  An  absolute  unqualified  demand 
of  rent,  which  is  due  after  a  forfeiture,  appears  to  be  a  waiver  of  it. 
See  the  judgment  of  Baron  Parke  in  Doe  d.  Nash  v.  Birch,  1  M.  &  W. 
408.*  A  demand,  however,  of  rent,  accruing  subsequently  to  the 
expiration  of  a  notice  to  quit  is  not  necessarily  a  waiver  of  the  notice. 
Blyth  V.  Dennett,  13  C  B.  178,  (76  E.  C.  L.  R.  178,).  The  reason 
of  this  distinction  appears  to  be  that  in  the  case  of  a  notice  to  quit, 
the  tenancy  is  put  an  end  to  by  the  agreement  of  the  parties,  and 
therefore  the  determination  cannot  be  waived  without  the  assent  of 
both ;  but  in  the  case  of  a  forfeiture,  the  lease  is  voidable  only  at  the 
election  of  the  lessor.  See  the  observations  of  Mr.  Justice  Maule  in 
the  case  last  cited. 


152  LANDLORD    AND    TENANT. 

may  re-enter ^  sometimes  pro\T.des  that  upon  hreacli  the 
lease  shall  become  void  and  of  no  effect.  And  where 
these  words  were  used  it  was  long  supposed  that  the 
right  to  take  advantage  of  the  forfeiture  could  not  be 
waived,  for  that  in  the  other  case  the  lease  was  to  be- 
come void,  not  on  the  breach  being  committed,  hid  on 
tlie  landlorcVs  entering  to  talze  advantage  of  it,  and  this 
being  an  act  to  be  done  by  the  landlord,  he  might,  if 
he  pleased,  decline  to  perform  it ;  and  if  he  did  so  de- 
cline, the  lease  would,  of  course,  still  remain  in  esse. 
But  it  was  thought  that,  when  it  was  provided  that  it 
shoidd  become  void  upon  breach  of  the  condition,  there,  as 
no  further  act  was  to  be  done  by  any  one  to  put  an 
end  to  it,  it  would  determine  of  itself  the  moment 
the  condition  was  broken.  And  it  was  further 
r*n  91  *thought  that  the  lessor  could  not  waive  or 
prevent  this  consequence,  since  it  was  to  take 
place  independently  of  any  act  to  be  done  by  him. 
And  this  was  laid  down  by  Lord  Coke,  1  Inst.  214  b, 
in  the  following  words :  "  When  the  estate  or  lease  is 
ipso  facto  void  by  the  condition  or  limitation,  no  accept- 
ance of  the  rent  after  can  make  it  to  have  a  continu- 
ance ;  otherwise  it  is  of  a  lease  or  estate  voidable  by 
entry."  See  also  Finch  v.  Throckmorton,  Cro.  Eliz. 
220,  and  Doe  d.  Simpson  v.  Butcher,  Dougl.  50.  How- 
ever, it  is  necessary  to  observe  that  this  distinction 
between  conditions  rendering  the  lease  voidable  by 
entry,  and  the  forfeiture  occasioned  by  the  breach  of 
which  was,  therefore,  admitted  to  be  waivable,  and 
conditions  rendering  the  lease  void  upon  the  breach, 
and  the  forfeiture  occasioned  by  which  was  therefore 
thought  incapable  of  being  waived,  has  been  much 
shaken,  if  not  altogether  overruled  by  subsequent 
authorities.  For,  in  the  first  place,  it  has  been  held 
that  even  where  it  is  provided  that  the  lease  shall  be 


THE     COVENANTS.  153 

come  void  upon  the  tenant's  committing  a  breach  of  the 
condition,  the  meaning  of  that  is,  that  it  shall  become 
void  at  the  option  of  the  lancUo7xl,  for  that  to  allow  the 
tenant  to  exonerate  himself  from  payment  of  the  rent 
by  his  o\vn  tortious  breach  of  the  condition,  would  be 
to  permit  him  to  take  advantage  of  his  own  wrong ;  and 
accordingly  in  Doe  v.  Bancks,  4  B.  &  A.  401,  (6  E.  C. 
L.  R.  535,)  and  Rede  v.  Farr,  6  M.  &  S.  121,  it  was 
decided  that,  in  all  such  cases,  it  is  at  the  option  of  the 
*lessor,  not  of  the  lessee,  whether  the  lease  r*i-iq-i 
shall  or  shall  not  determine  upon  breach  of  the 
conditions.  This  was  advancing  some  way  towards 
the  abolition  of  the  old  distinction  between  voidable 
and  void  leases ;  since,  to  give  the  lessor  an  option 
whether  the  lease  should  be  void  or  not,  was  to  give 
him  a  right  which,  like  other  rights,  was  capable  of 
being  waived,  of  exercising  that  option  in  a  particular 
manner;  and  there  seems  no  reason  why  the  accept- 
ance of  rent  subsequent  to  the  committal  of  the  breach 
should  not  be  permitted  to  operate  as  a  waiver.  And 
accordingly  the  cases  of  Amsby  v.  Woodward,  6  B.  & 
C.  519,  (13  E.  C.  L.  R.  238,);  Doe  v.  Birch,  1  M.  & 
W.  402;*  and  particularly  Roberts  v.  Davey,  4  B.  & 
Ad.  664,  (24  E.  C.  L.  R.  292,)  have  gone  far,  and  per- 
haps have  gone  the  whole  way  towards  putting  an  end 
to  the  distinction  taken  by  Lord  Coke ;  and  the  opinion 
prevalent  in  the  profession  now  is,  that  whether  the 
condition  be  worded,  that  the  lessor  may  re-enter,  or, 
that  the  lease  shall  become  void,  acceptance  of  rent  diie 
after  breach  by  the  lessor,  will  have  the  effect  of  con- 
firming the  tenancy.'^^  And,  at  aU  events,  it  seems 
quite  clear,  from  the  decisions  in  Arnsby  v.  Woodward, 
and  Doe  v.  Birch,  that  the  Court  will  seize  upon  any 

32  See  Coote's  Landl.  and  Ten.  382. 


154  LANDLORD    AND    TENANT. 

expressions  in  the  condition  which  may  enable  them  to 
construe  the  effect  of  it  to  be  such  as  to  render  the 
lease  voidable  rather  than  void ;  thus,  although  in 
those  two  cases,  it  was  provided  that  the  lease  should 
become  null  and  void,  and  that  it  should  be  lawful  for 
r*l  1 4T  ^^^^  *lessor  to  re-enter,  the  Court  held  that  the 
meaning  of  the  clause  was,  not  that  it  should 
be  absolutely  void,  at  all  events,  but  void  only  if  the 
lessor  thought  proper  to  re-enter,  his  right  to  do  which 
he  might  waive.^"(a)  Before  quitting  this  part  of  the 
subject,  I  must  request  you  to  bear  in  mind  that  rent, 
by  the  receipt  of  which  the  landlord  waives  the  for- 
feiture, must  be  rent  which  became  due  after  the 
breach  of  condition  by  which  the  forfeiture  was  occa- 
sioned ;  for  it  is  plain  to  common  sense  that,  if  it 
became  due  before  the  forfeiture,  the  landlord  ought 
not  to  lose  his  right  of  putting  an  end  to  the  tenancy, 
by  receiving  a  debt  which  became  due  at  a  time  when 
nothing  had  happened  to  render  the  tenancy  voidable. 
Hartshorne  v.  Watson,  4  Bing.  N.  C.  178,  (33  E.  C.  L. 

3^  See  also  the  judgment  in  Joaes  v.  Carter,  15  M.  &  W.  724* 
where  Baroa  Parke  said,  <<  Though  the  lease  is  declared  to  be  void 
for  breach  of  covenant,  it  is  perfectly  well  settled  that  the  true  con- 
struction of  the  proviso  is,  that  it  shall  be  void  at  the  option  of  the 
lessor ;  and  consequently,  on  the  one  hand,  if  the  lessor  exercises  the 
option  that  it  shall  continue,  the  lease  is  rendered  valid ;  if  he  elect 
that  it  shall  end,  the  lease  must  be  determined." 

^*  It  is  obvious,  as  is  explained  in  the  text,  that  the  acceptance  of 

(a)  Such  has  been  held  to  be  the  law  in  New  York  and  North 
Carolina.  Clark  v.  Jones,  1  Denio.  517 ;  Ludlow  v.  New  York  and 
Harlem  Railroad  Co.,  12  Barb.  440  ;  Philps  v.  Chesson,  12  Ired. 
194.  In  Pennsylvania  the  old  doctrine  was  asserted  in  Kenrick  v. 
Smith,  7  W.  &  S.  41. 

{h)  To  the  same  effect  is  Jackson  v.  Allen,  3  Cowen,  220  ;  Hunter 


THE    COVENANTS.  155 

*Now,  with  regard  to  the  condition,  tliat  the   r*i  i  c-i 
tenant  sliall  not   assign   iviihout  his  landlord's 

rent  affirms  the  existence  of  the  tenancy  during  that  period  only  in 
respect  of  which  the  rent  is  paid.  It  follows,  therefore,  that  the 
landlord  may  receive  any  rent  which  became  due  before  the  alleged 
forfeiture,  or  indeed  up  to  the  day  of  the  alleged  forfeiture,  or  bring 
an  action  to  recover  it  without  waiving  the  forfeiture.  It  is  only  by 
receiving  or  claiming  rent  due  since  the  forfeiture,  that  it  is  waived 
See  Co.  Litt.  211  b;  Pennant's  Case,  3  Rep.  64  b;  and  Coote's 
Landl.  and  Ten.  384.  The  eifect  of  a  distress  is  different,  for  dis- 
training even  for  rent  due  before,  or  at  the  time  of  the  forfeiture, 
appears  to  amount  14^0  a  waiver.  Doe  d.  Flower  v.  Peck,  1  B.  &  Ad. 
436,  (20  E.  C.  L.  R.  549,).  Under  the  old  law  the  effect  of  a  dis- 
tress  was  in  this  respect  quite  clear;  for  as  no  distress  could  be 
made  after  the  determination  of  the  tenancy,  the  act  of  distraining 
was  obviously  an  acknowledgment  of  a  then  existing  tenancy.  Co. 
Litt.  47  b.  This  appears  to  be  so  even  since  the  8  Anne,  c.  14,  s.  6, 
which  allows  distresses  to  be  made  within  six  months  after  the 
determination  of  the  tenancy ;  for  this  statute  seems  to  apply  only 
where  the  tenancy  is  determined  by  lapse  of  time,  or  perhaps  by 
notice  to  quit,  and  not  where  it  ceases  by  reason  of  a  forfeiture.  See 
Doe  d.  David  v.  Williams,  7  C.  &  P.  322,  (32  E.  C.  L.  R.  635,).  And 
assuming  this  construction  of  the  act  to  be  correct,  a  distress  is,  even 
now,  an  acknowledgment  that  the  tenancy  has  not,  up  to  the  time  of 
distraining,  been  determined  hy  forfeiture.  In  Bailey  v.  Mason,  2 
Irish  Com.  Law  R.  582,  a  question  arose  as  to  the  effect  of  a  state- 
ment by  the  landlord  at  the  time  of  the  distress,  that  he  did  not 
intend  to  waive  a  pending  ejectment.  In  this  case  the  plaintiff  after 
the  service  of  a  writ  in  ejectment  for  non-payment  of  rent,  distrained 
for  rent  subsequently  due.  The  notice  of  the  distress  stated  that  it 
was  made  without  in-ejudice  to  the  years  rent  due,  and  for  which 
ejectment  prGceedi7i<js  were  then  jj^iidinj.  The  Court  of  Common 
Pleas  in  Ireland  held  that  this  distress  did  not  operate  as  a 
waiver  of  the  ejectment.     No  question  appears  to  have   arisen  as  to 

V.  Osterhoudt,  11  Barb.  Sup.  Ct.  33 ,  but  no  act  of  the  lessor  will  waive 
the  forfeiture  unless  he  knows  that  the  forfeiture  has  been  incurred, 
Jackson  v.  Brownson,  7  Johns.  227;  Jackson  v.  Schietz,  18  Johns.  174. 


156  LANDLORD    AND    TENANT. 

license^  and,  sometimes  also,  that  lie  shall  not  underlet — 
this  condition  is  not  unfrequently  inserted  in  leases. 
The  object  of  it  is  to  prevent  the  tenant  from  assigning 
his  interest  in  the  premises  to  an  insolvent  person  or 
person  of  bad  character,  and  thereby  lea^dng  them  at 
the  mercy  of  such  an  occupier.  It  has  been  held  in 
several  cases,  that  a  condition  not  to  assign  is  not 
broken  by  an  assignment  by  operation  of  law,  as,  for 
instance,  under  the  bankrupt  laws,  in  case  of  the 
tenant's  bankruptcy,  or  imder  the  insolvent  laws  in 
case  of  his  insolvency,  or  by  means  of  an  execution, 
r*l  1  fil  ^^^^  ^^  such  cases  the  assignment  is  not  the  act 
of  the  tenant  but  of  the  law  (see  Doe  v.  Bevan, 
3  M.  &  S,  353.)'^'^(«)     But,  though  a  condition  simply 

whether  this  notice  prevented  the  distress  from  operating  as  a  waiver 
of  the  forfeiture ;  but  it  is  difficult  to  see  how  it  could  have  this 
effect. 

2*  See  Doe  d.  Mitchinson  v.  Carter,  8  T.  E.  57 ;  and  Doe  d.  Lord 
Anglesea  v.  Rugeley,  6  Q.  B.  107,  (51  E.  C.  L.  R.  107,).  Where  a 
tenant  covenanted  that  he  would  "  not  assign,  transfer,  or  set  over, 
or  otherwise  do  or  put  away  the  indenture  of  demise,  or  the  premises 
thereby  demised,"  it  was  held  that  this  covenant  was  not  broken,  so 
as  to  work  a  forfeiture,  by  his  making  an  underlease.  Crusoe  d. 
Blencowe  v.  Bugby,  2  W.  Bl.  766 ;  see  also  the  judgment  in  Church 
V.  Brown,  15  Ves.  265 ;  and  Kinnersley  v.  Orpe,  1  Dougl.  56.  In 
Doe  d.  Holland  v.  Worsley,  1  Camp.  20,  however,  Lord  Ellenborough 
held  at  Nisi  Prius  that  a  proviso  that  a  tenant  should  "  not  assign  or 

(a)  See  Jackson  v.  Silvernail,  15  Johns.,  278 ;  Jackson  v.  Kip, 
3  Wend.,  231. 

It  is  also  held  that  a  condition  not  to  assign  is  not  broken  by  un- 
derletting. When  the  condition  was  that  the  lease  should  be  void 
if  the  lessee  assigned,  the  condition  was  held  to  be  valid,  but  it  was 
said  under  such  a  condition  the  lessee  might  associate  others  with 
himself  in  the  enjoyment  of  the  term,  or  might  make  a  sub-lease. — 
Hargrave  v.  King,  5  Ired.  Eq.,  430.  Nor  is  a  condition  not  to  un- 
derlet broken  by  an  assignment.     Spear  v.  Fuller,  8  N.  Ham.,  174. 


THE    COVENANTS.  157 

restraining  assignment^  does  not  comprehend  these 
cases,  yet,  by  the  insertion  of  special  words  in  the  con- 
dition, they  may  be  comprehended,  and  the  lease  put 
an  end  to  upon  their  arising,  since  they  are  the  very 
events  against  which  it  is  most  incumbent  on  the  land- 
lord to  protect  himself.  Roe  v.  Galliers,  2  T.  E,.  133; 
Davis  V.  Eyton,  7  Bing.  151,  (20  E.  C.  L.  R.  77,).^^ 

*There  is  a  very  singular  point  arising  upon   r*i  i  -^-1 
the  construction  of  this  condition  not  to  assign 
without  license, — a  point,  the  state  of  the  law  regarding 
which  does  certainly  appear  opposed  to  common  sense, 

otherwise  part  with  the  indenture  of  lease,  or  the  premises  thereby 
demised,  or  any  part  thereof,  yb?*  the  whole  or  any  part  of  the  term 
thereby  granted  to  any  person  or  persons  whomsoever  without-  the 
license,  &c.,"  was  broken  by  an  underlease.  Letting  lodgings  has 
been  held  not  to  be  a  breach  of  a  covenant  not  to  "  grant  any  under- 
lease or  leases  for  any  term  or  terms  whatsoever,  or  let,  assign, 
transfer,  set  over,  or  otherwise  part"  with  the  premises ;  Doe  d.  Pitt 
V.  Laming,  4  Camp.  77.  A  condition  not  to  "  set,  let,  or  assign 
over"  the  demised  premises  "  or  any  part  thereof  without  license, 
&c.,"  includes  the  making  of  an  underlease.  Roe  d.  Gregson  v. 
Harrison,  2  T.  R.  425.  See  also  Roe  d.  Dingley  v.  Sales,  1  M.  & 
S.  207;  and  Greenaway  v.  Adams,  12  Ves.  395.  A  Court  of  Equity 
will  not  relieve  against  a  forfeiture  caused  by  assigning  without 
license.     Hill  v.  Barclay,  18  Ves.  63. 

^°  See  as  to  stipulations  of  this  description,  Rouch  v.  The  Great 
Western  Railway  Co.,  1  Q.  B.  51,  (41  E.  C.  L.  R.  432,);  Doe  d. 
Wyndham  v.  Carew,  2  Q.  B  317,  (42  E.  C.  L.  R.  692,) ;  and  Doe 
d.  Lloyd  V.  Ingleby,  15  M.  &  W.  465.*  In  the  last  of  these  cases  the 
lease  contained  a  proviso  for  re-entry  in  case  the  lessee  should  during 
the  term  commit  any  act  of  bankruptcy,  whereupon  a  commission  or 
fiat  in  bankruptcy  should  issue  against  him,  and  under  which  he 
should  be  duly  found  and  declared  a  hankrnpt.  The  lessee  became 
bankrupt,  in  fact,  but  the  petitioning  creditor's  debt  was  improperly 
proved.  The  judges  of  the  Court  of  Exchequer  differed  in  opinion 
as  to  whether  the  tenant  had  been  didy  found  bankrupt  within  the 
meaning  of  this  proviso. 


158  LANDLORD    AND    TENANT. 

but  wliich  is,  nevertheless,  settled  by  a  variety  of  de . 
cisions.  It  is,  that  if  the  landlord  license  one  assignment 
the  condition  is  at  an  end  for  ever,  and  the  assignee 
may  afterwards  assign  Avithout  license,  Dumpor's  Case, 
4  Co.  119,  Brummel  v.  Macpherson,  14  Ves.   173.^^ 

2"  See  the  notes  to  Dumpor's  Case,  1  Smith's  L.  C  15.  In  order 
that  the  license  may  discharge  the  condition,  it  must  be  given  in 
conformity  with  its  terms ;  for  instance,  if  the  condition  is  not  to 
assign  without  license  in  v:rithig,  a  mere  parol  license  will  not 
operate  as  a  dispensation.  Roe  d.  Gregson  v.  Harrison,  2  T.  R.  425 ; 
Macher  v.  The  Foundling  Hospital,  1  V.  &  B.  191.  It  will  be 
observed  that  in  Dumpor's  Case,  the  lessee  having  assigned  under  a 
license  from  the  landlords,  the  assignee  devised  the  term  to  his  son  ; 
the  son  died  intestate,  and  his  administrator  afterwards  assigned 
again.  The  assignment,  which  the  landlords  alleged  to  be  a  breach 
of  the  condition,  and  in  respect  of  which  they  claimed  the  property, 
was  this  last  assignment.  No  question  arose  in  this  case,  as  to  the 
effect  of  a  license  to  assign  upon  a  covenant  not  to  assign;  indeed  it 
does  not  appear  that  the  lease  contained  such  a  covenant.  It  is  not  by 
any  means  clear  that  the  covenant  not  to  assign,  is  affected  by  the  license 
to  assign.  Of  course  the  lessee  is  not  liable  in  respect  oihis  assignment 
which  by  the  supposition  is  authorised ;  but  if  he  covenants  that  neither 
he  or  his  assi'jns  shall  assign,  it  would  seem  that  he  will  be  liable  in  re- 
spect of  a  subsequent  unauthorised  assignment  by  his  assignee.  In 
Paul  V.  Nurse,  8  B.  &  C.  486,  (15  E.  C  L.  R.  241,)  the  landlord  sued 
the  assignee  of  the  lessee  for  non-payment  of  rent.  The  defendant  plead- 
ed that  before  the  rent  became  due,  he  had  assigned  to  a  third  person  ; 
and  to  this  the  plaintiff  replied  that  there  was  a  covenant  in  the  lease 
by  which  the  lessee  had  covenanted  for  himself,  his  executors,  admin- 
istrators, and  assigns,  not  to  assign  without  the  consent  of  the  lessor, 
and  that  no  consent  had  been  given.  It  was  held  that  this  replica- 
tion was  bad  on  demurrer,  since  the  covenant  by  the  lessee  did  not 
render  the  assignment  by  the  assignee  void,  and  the  liability  of  the  de- 
fendant as  assignee  was  at  an  end  when  he  had  parted  with  the  estate. 
The  Court  intimated  that  the  landlord's  remedy  might  be  on  the 
covenant  not  to  assign,  meaning,  apparently  that  the  lessee  might  be 
sued  on  it  in  respect  of  the  assignment  by  the  assignee,  if  this  assign- 
ment could  be  brought  within  the  terms  of  the  covenant,  by  which 


THE    COVENANTS.  159 

With  *regard.  to  this  rule  I  will  merely  repeat  r*i  lo-i 
the  observation  of  Sir  James  Mansfield  in  Doe 
V.  Bliss,  4  Taunt.  736,  namely,  "  that  the  profession 
have  alvrays  wondered  at  it,  but  that  it  has  been  law  so 
many  centuries  that  it  cannot  now  be  reversed."  I 
will,  however,  mention  one  remarkable  distinction 
which  subsists  between  conditions  not  to  assign  and  coyi- 
ditions  not  to  underlet^  namely,  that,  in  the  *for-  j-^., ,  q-. 
mer  case,  if  the  lessee  break  the  condition  by 
assigning,  and  the  lessor  accept  rent  subsequently 
accruing,  and  thereby  waives  the  forfeiture  upon  the 
principles  which  I  have  been  explaining,  there  is  an 
end  of  the  condition  not  to  assign  for  the  rest  of  the 
term,  but,  in  the  latter  case,  if  the  tenant  break  the 
condition  by  making  an  underlease,  and  the  landlord 
accept  rent  accruing  subsequently  to  the  breach,  he 
waives,  it  is  true,  the  right  to  take  advantage  of  tliat 
particular  forfeiture^  but,  if  the  tenant  make  another 
underlease,  he  has  a  right  to  take  advantage  of  that 

the  lessee  only  covenanted  for  himself,  his  executors,  administrators, 
and  assigns,  that  he,  his  executors  or  admi'vistrators  would  not  assign. 
It  will  be  observed,  that  in  this  case  there  was  no  condition  of  re- 
entry in  respect  of  the  breach  of  covenant.  See  Coote's  Landl.  and 
Ten.  289,  A  general  covenant  not  to  assign,  in  which  ''assigns" 
are  not  mentioned,  does  not  run  with  the  land,  for  it  obviously  con- 
templates that  the  land  shall  not  pass  into  the  possession  of  an 
assignee;  but  if  a  condition  of  re-entry  is  annexed  to  such  a  covenant, 
it  seems  that  the  assignee  of  the  land  will  take  it  subject  to  the 
condition,  and  that  it  is  immaterial,  in  this  respect,  whether  the 
condition  is  for  the  performance  of  a  covenant  which  runs  with  the 
land,  or  one  which  is  wholly  collateral.  See  1  Wms.  Saund.  288  b ; 
the  judgments  in  Bally  v.  Wells,  3  Wils.  33;  and  in  Doe  d.  Flower 
V.  Peck,  1  B.  &  Ad.  436,  (20  E.  C  L.  R.  549,)  and  Coote's  Landl. 
and  Ten.  291.  A  covenant  not  to  assign  tvithoiit  license,  which  does 
not  assume  that  no  assignment  of  the  land  is  to  be  made,  would  pro- 
bably, if  properly  framed,  be  held  to  run  with  the  land. 


ICO  LANDLORD    AND     TENANT. 

and   re-enter,  Doe  v.  Bliss,  4   Taunt.   735 ;  Lloyd  v. 
Crispe,  5  Taunt.  249,  (1  E.  C.  L.  R.  136,).^^ 

In  the  case  of  a  condition  for  re-entry  upon  non-pay- 
ment of  rent,  it  has  been  held  that  the  condition  is  not 
broken  unless  the  rent  have  'been  demanded  on  the 
very  day  on  which  it  became  due,  with  a  variety  of 
technical  formalities,  which  you  will  find  described  in 
note  16  to  Duppa  v.  Mayo,  1  Wms.  Saund.  287,  and 
which  were  so  numerous  and  troublesome  as  to  render 
it  next  to  an  impossibility  to  take  advantage  of  a  breach 
of  that  condition.  To  obviate  these  difficulties,  the 
parties,  sometimes,  expressly  insert  in  the  condition, 
terms  dispensing  with  a  formal  demand  of  the  rent, 
which,  when  inserted,  are  held  operative,  see  Doe  d. 
r*i9Q-,  Harris  v.  Masters,  2  B.  *&  C.  490,  (9  E.  C  L. 
R.  217,).  And  in  order,  as  far  as  possible,  to 
accomplish  the  same  end  in  cases  where  the  parties 
have  not  expressly  dispensed  with  a  demand,  stat.  4 
Geo.  2,  c.  28,  in  cases  in  which  half  a  year's  rent  is  in 
arrear  and  no  sufficient  distress  on  the  premises,  sub- 
stitutes the  service  of  a  declaration  in  ejectment  in  the 
manner  pointed  out  by  the  Act  for  the  demand  which 
would  be  otherwise  necessary  in  order  to  create  a 
breach  of  the  condition.  See  on  the  construction  of 
this  Act,  Doe  v.  Lewis,  1  Burr.  614,  Doe  v.  Wandlass, 
7  T.  R  117.'^ 

3^  See  the  judgment  of  Mr.  Justice  Patteson  in  Doe  d.  GriflBth  v. 
Pritchard,  5  B.  &  Ad.  781,  (27  E.  C  L.  R.  329,) ;  and  the  notes  to 
Duppa  V.  Mayo,  1  Wms.  Saund.  288  b. 

^^  The  right  of  entry  in  cases  of  this  kind  is  now  regulated  by  s. 
210  of  the  Common  Law  Procedure  Act,  1852,(15  and  15  Vic.  c,  76,) 
which  re-enacts  s.  2  of  the  4  Geo.  2,  c.  28,  with  slight  differences, 
rendered  necessary  by  (he  new  procedure  in  ejectment.  The  decisions 
upon  the  4  Geo.  2,  c.  28,  are  applicable  to  this  portion  of  the  Com- 
mon Law  Procedure  Act,  1852.  The  4  Geo.  2,  c.  28,  was  held  not 
to  apply  unless  the  landlord   had  a  right  of  re-entry  in  respect  of  the 


THE    COVENANTS.  IGl 

*Having  thus  touched  on  the  points  relative    r*i  91  -i 
to  the  creation  of  a  tenancy,  viz.,  the  capacity  of 

non-payment  of  half  a  yearns  rent.  Doe  d.  Dixon  v.  Roe,  7  C  B. 
134,  (G2  E.  C.  L.  R.  134,);  nor  did  it  apply  where  the  right  of 
re-entry  was  not  absolute;  as,  for  instance,  where  the  power  was  only 
to  re-enter  and  hold  the  premises  until  the  rent  was  satisfied.  Doe  d. 
Darke  v.  Bowditch,  8  Q.  B.  973,  (55  E.  C.  L.  R.  973,).  It  is  essen- 
tial to  proceedings  under  these  statutes,  that  no  sufficient  distress 
should  be  found  on  the  premises.  Doe  d.  Smelt  v.  Fuchau,  15  East. 
286.  Every  part  of  the  premises  should  be  searched.  Rees  d. 
Powell  r.  King,  mentioned  in  the  judgment  in  Smith  v.  Jersey,  2 
Bro.  &  Bing.  514,  (6  E.  C.  L.  R.  253,).  The  goods  must,  however,, 
be  so  visibly  on  the  premises,  that  a  broker  going  to  distrain  and 
using  reasonable  diligence  would  find  them.  See  Doe  d.  Haverson  v. 
Franks,  2  Car.  &  Kir.  G78,  (61  E.  C.  L.  R.  G78,).  The  statutes 
speak  of  no  sufficient  distress  being  "  found"  on  the  premises.  If, 
therefore,  the  tenant  locks  up  his  doors  so  that  the  landlord  cannot 
enter  upon  the  premises  to  distrain,  proof  of  this  fact  is  enough  with- 
out showing  that  no  sufficient  distress  was  on  the  pi'emises.  Doe  d. 
Chippendale  v.  Dyson,  1  Moo.  &  M.  77,  (22  E.  C.  L.  R.  478,).  It 
was  at  one  time  thought  that  where  more  than  half  a  year's  rent  was 
due,  it  was  not  enough  to  show  that  there  was  no  distress  sufficient  to 
countervail  the  whole  arrears  due.  Doe  d.  Powell  v.  Roe,  9  Dowl. 
548;  Doe  d.  Gretton  v.  Roe,  4  C.  B.  576,  (56  E.  C  L.  R.  576,). 
But  this  is  not  the  true  construction  of  the  statute.  Cross  v.  Jordan, 
8  Exch.  149.  In  Doe  d.  Scholefield  v.  Alexander,  2  M.  &  S.  525,  a 
lease  contained  a  proviso  of  re-entry  if  the  rent  was  in  arrear  for 
twenty-one  days  after  the  time  of  payment  ''being  lawfully  de- 
manded." Lord  Ellenborough  thought  that  notwithstanding  the  4 
Geo.  2,  c.  28,  a  demand  was  still  necessary,  since  it  was  made  so  by 
the  express  contract  between  the  parties.  The  other  Judges  of  the 
Court  of  King's  Bench  held,  however,  that  as  before  the  statute, 
every  clause  of  re-entry  contained  these  words  in  efiect,  although  not 
in  terms,  their  express  insertion  in  the  proviso  did  not  vary  its  legal 
effect ;  and  consequently  that  the  statute,  even  in  this  case,  rendered 
any  demand  unnecessary.  And  this  view  of  the  act  has  been  acted 
upon  in  a  later  case.  See  Doe  d.  Earl  of  Shrcw.sbury  v.  Wilson,  5  B. 
>v  A.  384,  (7  E.  C.  L.  R.  131,). 

11 


162 


LANDLORD    AND     TENANT. 


tlie  lessor^  that  of  the  lessee,  the  suhject-matter  of  demise,  and 
the  general  nature  and  ordinary  terms  of  the  demise  itself 
I  shall  proceed  in  the  next  Lecture  to  the  second  prin- 
cipal head  into  which  I  divided  the  whole  subject,  com- 
prising those  points  which  arise  during  the  tenancy. {a) 

(a)  Upon  the  general  subject  of  the  preceding  chapter,  the  reader 
is  referred  to  Judge  Hare's  note  to  Dumpor's  case,  in  the  first  volume 
of  the  American  edition  of  Smith's  Leading  Cases,  p.  87. 


[*122] 


*LECTUEE    V 


Points  Relating  to  Continu- 
ance OF  Tenancy 124 

Rights  of  Landlord 124 

As  TO  Payment  of  Rent 125 

Time  at  which  rent  is  pay- 
able    125 

Mode  of  Payment 127 

Rent  a  Debt  of  a  high  nature  128 
Eifect   of  taking  a   Bill   or 

Note  in  Payment 128 

Amount  of  Payment 129 

Deductions  which  Tenant  is 

entitled  to  make 129 

Land-Tax 133 

Income-Tax 133 

Tithe  Rent-Charge 133 

xipportionment 133 

Remedies  for  enforcing  Pay- 
ment OF  Rent 136 

By  Action 138 


Useand  Oceu])ation 139 

J?  y  Distress 141 

What  the   Landlord  may  dis- 
train     141 

(General  Rule  as  to  Chattels 

personal 141 

Exceptions 142 

Things  absolutely  protected.   142 
Things      conditionally     pro- 
tected   149 

Growing  Crops 149 

Where  the  Landlord  may  dis- 
train    152 

General  Rule 153 

Exceptions 153 

Distress  on  Goods  fraudu- 
lently removed 154 

Distress  on  Cattle  on  Com- 
mons, kc,  belonging  to 
Premises 156 


You  will  probably  bear  in  mind  that  I  commenced 
these  Lectures  by  enumerating  the  various  sorts  of 
tenancy  known  to  the  law,  and  giving  a  general  outline 
of  their  nature  and  qualities.  In  the  next  Lecture, 
confining  my  attention  to  those  of  a  degree  inferior  to 


RECAPITULATION.  1G3 

freehold,  and  premising  that  it  was  not  my  intention 
to  enter  npon  the  consideration  of  any  others,  I  divided 
the  entire  subject  into  four  heads:  the  Jirsf,  embracing 
points  which  *relate  to  the  commencement  of  a  j.^,^^-. 
tenancy;  the  second,  those  arising  during  its 
continuance  ;  and  the  third,  tliose  relating  to  its  termi- 
nation. And  it  is  obvious,  that  as  every  point  arising 
upon  any  subject  matter  whatever  must  arise  either  at 
its  commencement,  during  its  continuance,  or  at  its  termi- 
nation, these  three  heads  would  have  comprehended 
the  entire  subject,  had  it  not  been  that  both  the  parties 
to  the  relation  of  landlord  and  tenant  are  liable  to  be 
changed,  namely,  either  by  the  assignment  of  the  term, 
or  that  of  the  reversion,  or  by  certain  other  means 
known  to  the  law;  and  inasmuch  as  there  are  peculiar 
rules  relating  to  such  changes,  and  peculiar  rights  and 
liabilities  arising  out  of  them,  it  became  necessary  to 
add  a  fourth  head,  for  the  purpose  of  embracing  the 
points  consequent  upon  such  a  change  of  parties. 

Having  made  this  division,  our  first  stepAvas,  to  con- 
sider the  first  of  the  four  heads  into  which  the  entire 
subject  had  thus  been  divided,  that,  namely,  which  em- 
braced the  points  relating  to  the  commencement  of  a  ten- 
ancy ;  and  this,  again,  naturally  subdivided  itself  into 
four  minor  heads ;  for,  as  in  order  to  the  creation  of 
every  tenancy  there  must  be — 1st,  a  lessor  ;  2ndly,  a 
lessee;  3rdly,  a  siJjject  matter  of  demise  ;  and  4thly,  a 
demise;  it  became  necessary  to  say  something  upon 
each  of  these  four  requisites.  That  which  occupied 
most  of  our  time  was  (you  Avill  remember)  the  demise  ; 
for  it  was  necessary  to  touch  on  the  three  different 
modes  of  demise,  namely,  hy  deed,  hy  writing  loithoat 
*seal,  and  hy  i^roJ,  and  afterwards  to  say  a  few  r*i  9 ^-i 
words  upon  the  construction  of  tlie  usual  com- 
ponent parts  of  a  formal  lease,  namely,  the  premises,  the 


164  LANDLORD  AND    TENANT. 

hahendum,  the  reddendum^  the  covenants^  and  the  condi- 
tions or  exceptio7is.  With  the  consideration  of  these 
the  last  Lecture  concluded.  x\nd  my  reason  for  now 
recapitulating  what  has  been  done  is,  that  I  think  it 
absolutely  necessary,  in  treating  so  extensive  a  subject 
as  the  present,  to  adopt  as  clear  an  arrangement  as 
possible  of  the  various  topics  which  it  comprehends,  so 
as  to  prevent  them  from  confusing  and  conflicting  with 
one  another,  and  also  to  bear  that  arrangement  con- 
stantly in  mind,  so  as  to  be  always  aware  what  relation 
the  particular  topic  which  we  are  at  any  particular 
moment  considering,  bears  to  the  entire  subject  of 
which  it  forms  a  part. 

Having,  therefore,  disposed  of  those  points  which 
relate  to  the  commencement  of  the  tenancy,  we  are  about 
to  enter  upon  those  which  arise  during  its  continuance. 
And  these,  it  is  obvious,  relate  to  the  respective  rights — 
1st,  of  the  landlord  as  against  tlie  tenant;  2ndly,  of  the 
tenant  as  against  the  landlord.(a) 

(«)  Another  set  of  rights  are  those  of  the  landlord  against  third 
persons.  Serious  injuries  to  the  inheritance  may  be  committed  dur- 
ing the  tenancy  by  strangers,  and  it  is  often  a  question  how  they  are  to 
be  redressed  or  prevented.  It  is  held  that  the  owner  of  real  estate  in 
the  possession  of  a  lessee,  other  than  at  will,  cannot  maintain  trespass 
for  an  injury  to  his  reversionary  interest.  Lisnow  v.  Ritchie,  8  Pick., 
235;  Taylor  v.  Townsend,  8  Mass.,  411,  415  ;  Cannon  v.  Hatcher, 
1  Hill,  2G0. 

Case  is  generally  the  proper  action  to  be  brought  by  the  reversioner 
for  injuries  to  the  inheritance.  It  is  the  remedy  for  interference  with 
water  courses  and  ways,  and  the  damage  which  may  be  occasioned 
by  water  falling  from  the  eaves  of  another's  house ;  when  the 
possession  is  in  a  tenant  the  declaration  should  state  the  fact,  and 
allege  the  injury  to  the  inheritance.  Com.  Dig.,  Tit.  Act,  Case 
Nuisance  B.,  Jackson  v.  Pesked,  1  M.  &  S.,  234;  Alston  v.  Scales,  9 
Ling.,  3,  (23  E.  C.  L.  E  ,  460) ;  Baxter  r.  Taylor,  4  B.  &  Adol.,  72, 
(24  E.  C.  L.  n.,  41)  ;  Bell  v.  Tweutyman,  1  Adol  &  Ellis,  N.  S.,  7(36, 


EIGHTS    OF    LANDLORDS.  165 

Now,  with  regard  to  the  rights  of  the  landlord,  as 
against  his  tenant,  it  is  obvious  that  these  must  concern 
either  the  remuneration  he  is  to  receive  for  parting  with 
the  possession  of  his  property,  or  the  condition  in  which 
he  is  entitled  to  have  that  property  preserved  while  it 
is  out  of  his  own  power  to  interfere  with  it ;  in  other 
words,  *his  principal  rights  as  against  his  tenant  r#i  Qr-i 
relate  either  to  the  payment  of  rent,  or  the  j)er- 
formance  of  repairs. 

Now,  in  the  first  place,  with  regard  to  rent.  I  have 
already,  while  touching  upon  the  reddendum  clause  in- 
serted in  a  formal  lease,  explained  the  nature  of  rent, 
and  the  difference  between  rent-services,  rent-charges, 
and  rents-sedi,  of  the  first  of  which  three  descriptions 
are,  as  I  stated,  the  rents  reserved  upon  all  leases  for 
years.'^  The  points  which  remain  to  be  touched  upon 
in  this  division  of  the  subject  are — 

1st.  With  regard  to  the  time  at  which  the  rent  is 
payable. 

2ndly.  With  regard  to  the  mode  of  payment. 

3rdly.  With  regard  to  the  amount  payable ;  and, 

4thly.  With  regard  to  the  means  of  enforcing  pay- 
ment. 

1  Ante,  p.  89. 


(41  E.  C.  L.  R.,  767) ;  Tucker  v.  Newman,  11  Adol.  &  Ellis,  40,  (39 
E.  C.  L.  R.,  21) ;  Egrement  v.  Pulman,  1  Moo.  &  Malk.,  404,  (22 
E.  C.L.  R.,551)j  Davis  v.  Jewett,  13  N.  IL,  88;  Sumner*;.  Tileston, 
7  Pick.,  198;  Ripka  v.  Sergeant,  7  "Watts  &  Ser.,  9;  Hale  v.  Oldroyd, 
14  M.  &  W.,  789;*  Bellows  v.  Sackett,  15  Barb.,  96. 

In  one  case,  where  the  lease  was  of  a  factory  moved  by  water  power, 
it  was  held  that  the  lessee  took,  by  implication,  all  the  right  to  use 
the  water  which  the  lessor  had.  But  if  more  water  was  used  than 
the  lessor  had  a  right  to,  and  injury  was  done  thereby  to  any  one,  the 
party  injured  must  look  for  redress  to  the  lessee  and  not  to  the  lessor. 
Wyman  v.  Farrar,  35  Maine,  04. 


166  LANDLORD    AND     TENANT. 

We  will  consider  these  four  points  in  order. 

And  with  regard  to  the  first,  namely,  the  time  at 
which  the  rent  is  payable.  Properly  speaking,  the  rent 
reserved  upon  a  lease  is  not  payable  until  the  midnight 
of  the  day  specified  in  the  lease  for  payment  of  it.(«) 
Cutting  V.  Derby,  2  W.  Bl.  1077,  and  the  judgment  in 
Leftley  t\  Mills,  4  T.  R.  170.  Although,  where  it  is 
necessary  to  make  a  demand  of  it  in  order  to  create  a 
forfeiture  by  breach  of  such  a  condition  of  re-entry  for 
non-payment  of  rent,  as  I  described  in  the  last  Lecture, 
all  the  authorities  agree  that  such  demand  must  be 
P^,^P^  made  *before  sunset;  see  Duppa  v.  Mayo,  1 
Wms.  Saund.  287,  and  Tinckler  v.  Prentice,  4 
Taunt.  549  ;"(6)  for  which  anomaly  they  assign  a  singular 
and  very  primitive  reason,  namely,  that  the  tenant  may 
\m\e  light  to  count  the  money.  And  the  same  rule 
prevails  where  it  is  necessary  that  the  tenant  should 
make  a  tender  of  the  rent  to  prevent  the  forfeiture, 
which  he  must  do  where  the  proviso  is  so  worded  as  to 
dispense  with  a  formal  demand  on  the  part  of  the  land- 
lord.^ For  all  other  purposes,  however,  the  rent  be- 
comes due  upon  the  midnight  of  the  day  on  which  it 

^  See  also  the  judgment  in  Haldane  v.  Johnson,  8  Exeh.  694.  It 
is  no  answer  to  an  action  upon  a  covenant  to  pay  rent  (no  particular 
place  for  the  payment  being  mentioned),  that  "the  tenant  was  on  the 
demised  premises  fur  half  an  hour  before,  aud  continued  there  until 
the  setting  of  the  sun  on  the  day  on  which  the  rent  was  payable,  and 
was  then  ready  to  pay  it  if  the  landlord  had  been  willing  to  accept  it, 
but  that  no  one  came  to  receive  it.  For  it  is  the  duty  of  the  cove- 
nantor to  seek  out  the  person  to  whom  the  money  is  to  be  paid,  and 
to  pay  it,  or  tender  it  to  him,  on  the  appointed  day. 

^  See  Duppa  v.  Mayo,  cited  above. 

(a)  In  a  lease  for  a  year,  if  no  time  is  fixed  for  the  payment  of  the  rent, 
it  is  not  payable  until  the  end  of  the  year.  Menough's  Appeal,  5  "\V.  & 
S.  4.32  ;   Boyd  v.  McCombs,  4  Barr,  148.     See  ante,  note  on  page  121. 

{h)   McCormick  v.  Connell,  6  S.  &  11.  151. 


PAYMENT    OF    RENT.  167 

was  re.served  payable  ;  and,  therefore,  if  the  landlord 
die  before  midnight  of  that  day,  the  rent  goes  to  his 
heir,  as  an  incident  to  the  reversion,  (supposing  it  to 
be  a  reversion  which  descends,)  not  to  his  executor, 
who  would  have  taken  it,  however,  had  the  deceased 
survived  midnight ;  since,  then,  it  would  have  been  a 
de^t  which,  being  personal  property,  would  pass  to  the 
personal  representative.  Duppa  v.  Mayo,  1  Wms. 
Saund.  287;  Clun's  Case,  10  Co.  127.* 

*Secondly,  as  to  the  mode  of  'paymerd.  Of  v^-^.^-i-i 
course,  where  payment  is  made  in  cash,  no  diffi- 
culty can  arise  on  this  part  of  the  subject,  and  I  need 
hardly  mention  that  such  a  payment  would  be  governed 
by  the  ordinary  rules  which  prevail  between  debtor  and 
creditor,  namely,  that  if  made  to  an  authorized  agent 
of  the  landlord,  it  would  be  as  effectual  as  if  made 
to  the  landlord  himself;^  that  a  remittance  by  the  post 
if  authorized  either  expressly  or  by  the  previous  usage 
of  the  parties,  would  be  a  sufficient  payment  ;^  and  that 

■*  Rent  is  due  and  payable,  in  one  sense,  upon  the  morning  of  the 
day  on  which  it  is  reserved;  for,  at  common,  law,  if  it  was  paid  ou 
the  morning  of  that  day  to  a  lessor,  who  died  before  the  day  was 
over,  the  payment  was  good  as  against  the  heir.  See  Clun's  case, 
cited  above,  and  Dibble  v.  Bowater,  2  E.  &  B.  564,  (75  E.  C.  L.  R. 
564,),  See  also  Lord  Rockingham  v.  Penrice,  1  P.  Wms.  177  ;  a 
case  which  was  decided  before  the  statute  of  apportionment,  the  11 
Geo.  2,  c.  19.  In  this  case  a  lessor,  who  had  made  a  lease  under  a 
power,  died  before  sunset  on  (he  rent  day,  and  the  tenant  paid  the 
rent  on  the  same  day.  The  Court  held  that  this  payment  was  good 
to  discharge  the  tenant,  but  that  the  executor  of  the  lessor  was  liable 
in  equity,  to  account  for  the  amount  to  the  heir  or  remaiudcr-mau. 
See  as  to  this  case,  1  Williams  on  Executors,  702. 

^  See  Goodland  v.  Blewith,  1  Camp.  477 ;  Owen  v.  Barrow,  1 
N.  R.  101;  and  Wilkinson  v.  Candlish,  5  Exch.  91. 

^  See  Warwick  ^■.  Noakcs,  Peake,  67  a;  and  as  to  payment  by 
giving  or  sending  a  cheque.  Pearce  v.  Davis,  1  ]M.  &  Rob.  365;  and 
Hough  V.  May,  4  A.  &  E.  954,  (31  E.  C.  L.  11.  415,). 


1G8  LANDLORD    AND     TENANT. 

the  tenant  would,  like  other  debtors,  have  a  right  to 
tender  a  receipt  for  signature  under  stat.  43  Geo.  3,  c. 
126,  s.  5.'  In  these  respects  the  situation  of  landlord 
and  tenant  is  the  same  as  that  of  any  other  debtor  and 
creditor,  but  there  are  certain  peculiarities  arising  out 
of  the  peculiar  nature  of  the  demand  for  rent  of  which 
it  will  be  proper  to  take  notice. 

r*l  9m  *E,ent  is  considered  by  the  law  as  a  demand 
of  a  very  high  nature,  higher  even  than  a  de- 
mand upon  a  bond  or  other  specialty,  although,  in 
case  of  death,  it  ranks  as  against  the  executor  or  admin- 
istrator, with  specialty  debts,  and  is  entitled  to  be  paid 
along  with  them,  and  before  simple  contracts. (a)  See 
Thompson  v.  Thompson,  9  Price,  471.^  It  follows  from 
this,  that  if  a  bond  be  given  for  rent,  the  original  de- 
mand mil  not  merge  in  the  specialty,^  as  you  are  pro- 
bably aware  that  any  demand  of  an  inferior  degree 
would.  The  same  principle  applies  where  the  landlord 
takes  a  bill  of  exchange  or  promissory  note  in  respect 
of  the  rent  due.  You  perhaps  know  that,  if  a  bill  or 
note,  payable  at  a  future  day,  be  given  on  account  of 
an  ordinary  simple  contract  demand,^*^  for  instance,  for 

^  The  stamps  on  receipts  are  now  regulated  by  the  16  &  17  Vic.  c.  59. 

^  A  debt  for  rent  ranks  as  high  as  a  specialty  debt,  whether  the 
rent  be  reserved  by  lease  in  writing,  or  by  parol,  because  the  rent 
issues  out  of  the  realty.  Willett  r.  Earle,  1  Yern.  490 ;  Gage  r. 
Acton   Garth,  511. 

9  See  Buller's  N.  P.  182. 

•'^  Or,  even  if  given  on  account  of  a  judgment  debt.  Baker  v. 
Walker,  14  M.  &  W.  405* 

(a)  In  Pennsylvania,  in  the  distribution  of  a  decedent's  estate, 
rents  not  exceeding  one  year  are  preferred  to  all  other  claims  except 
funeral  expenses,  medicine  furnished,  and  medical  attendance  given 
during  the  last  illness  of  the  decedent,  and  servant's  wages  not 
exceeding  one  year.     Act  24  Feb.  34,  s.  21. 


PAYMENT     OF     RENT.  1G9 

the  price  of  goods  sold  and  delivered,  it  will  suspend 
the  right  to  sue  for  the  original  demand  until  the  tim(^ 
has  arrived  at  which  the  bill  or  note  w^as  payable ;  but 
it  is  otherwise  wdiere  such  an  instrument  is  given  on 
account  of  rent,  for  that,  being  a  debt  of  a  superior  de- 
gree, cannot  be  suspended  by  a  security  of  an  inferior 
class,  and,  therefore,  if  a  landlord  take  a  note  at  three 
mwdlis  on  account  of  rent,  he  may  nevertheless  distrain 
the  next  day  if  *he  think  proper.  Davis  v.  r*  199-1 
Gyde,  2  A.  &  E.  623,  (29  E.  C.  L.  E.  291,)."(«) 

Thirdly,  with  regard  to  the  amount  of  payment. 
There  are  several  payments  in  the  nature  of  cross  de- 
mands, which  the  tenant,  for  reasons  arising  out  of  his 
situation  with  regard  to  the  land,  is  entitled  to  have 

"  The  right  to  distrain  is  not  suspended  by  taking  a  security  for 
the  rent,  even  although  it  be  under  seal,  such,  for  instance,  as  a 
bond.  1  Roll.  Ab.  DeU^  Extinguhlmient  (A),  pi.  2,  p.  605;  nor  by 
an  agreement  to  take  interest  on  rent  in  arrear.  Skerry  v.  Preston, 
2  Chit.  245.  In  Parrot  v.  Anderson,  7  Exch.  93,  a  tenant  who 
owed  rent  gave  a  bill  of  exchange  on  account  of  it  to  the  agent  of 
his  landlord.  The  agent  indorsed  the  bill  over  to  a  third  person, 
and  gave  the  landlord  credit  for  the  amount,  as  if  the  tenant  had 
paid  the  rent  in  money.  The  agent  paid  the  amount  to  the  land- 
lord, and  the  latter  afterwards  distrained  for  the  rent.  The  Court 
held  upon  these  facts  that  it  was  a  question  for  the  jury  whether  the 
transaction  amounted  to  a  discount  of  the  bill  by  the  agent,  in  which 
case  the  rent  was  paid,  and  the  distress  was  improper,  or  to  a  mere 
advance  of  the  rent  by  the  agent  to  the  landlord,  upon  which  suppo- 
sition he  was  still  entitled  to  distrain. 

♦ 

(«)  Snyder  v.  Kunkleman,  3  Penna.,  490;  Chipman  v.  Martin,  13 
Johns.,  240;  Bantleon  v.  Smith,  2  Binney,  140;  Gordon  v.  Correy, 
5  Binney,  552;  Denham  v.  Harris,  13  Alab.,  465;  Peters  v.  New- 
kirk,  6  Cow.,  103;  Baily  ?;.  Wright,  3  McCord,  484;  Cornell  v. 
Lamb,  20  Johns.,  407  ;  Price  v.  Limehou.se,  4  McCord,  544 ;  Prin- 
tems  V.  Helfrid,  1  Nott  &  McCord,  187 ;  Bailey  v.  Wright,  3  McCord, 
484. 


170  LANDLORD    AND    TENANT. 

deducted  out  of  the  amount  of  the  rent,  and  considered  as 
payment  of  so  much  of  it.  Thus  where  A.  leases  to  B., 
and  B.  underlets  to  C,  if  B.'s  rent  falls  into  arrear,  C.  will 
be  justified,  in  order  to  protect  himself  from  A.'s  dis- 
tress, in  paying  the  arrears  to  A.,  and  he  will  be  allowed 
to  treat  those  payments  as  payment  of  so  much  of  his 
own  rent  to  B.  Taylor  v.  Zamira,  6  Taunt.  524,  (1  E.  C. 
L.  R.  736,)  ;  Sapsford  i^  Fletcher,  4  T.  R.  oil ;  Exall  v. 
Partridge,  8  T.  R.  308 ;  Johnson  v.  Jones,  9  A.  &  E.  809, 
(36  E.  C.  L.  R.  293,).^^   The  justice  and  good  sense  of  this 

12  See  Wheeler  v.  Branscombe,  5  Q.  B.  373,  (48  E.  C.  L.  R.  373,). 
The  general  rule  is  that  the  tenant  can  treat  as  a  discharge  of  the 
rent  only  those  payments  to  third  parties,  which  are  made  in  satis- 
faction of  a  charge  on  the  land,  or  of  a  debt  of  the  landlord.  See 
Boodle  V.  Cambell,  7  M.  &  G.  386,  (49  E.  C  L.  R.  386,);  Graham 
V.  Allsopp,  3  Exch.  186;  and  Jones  v.  Morris,  ib.  742.  In  the 
judgment  in  Graham  v.  Allsopp,  the  principle  of  the  decisions  men- 
tioned in  the  text  is  thus  explained  : — '<■  The  immediate  landlord  is 
bound  to  protect  his  tenant  from  all  paramount  claims ;  and  when, 
therefore  the  tenant  is  compelled,  in  order  to  protect  himself  in  the 
enjoyment  of  the  land,  in  respect  of  which  his  rent  is  payable,  to 
make  payments  which  ought,  as  between  himself  and  his  landlord,  to 
have  been  made  by  the  latter,  he  is  consklered  as  having  been  author- 
ised hy  the  landlord  so  to  afply  his  rent  due  or  accruing  due.  All 
such  payments,  if  incapable  of  being  treated  as  actual  payment  of 
rent,  would  certainly  give  the  tenant  a  right  of  action  against  his 
landlord  as  for  money  paid  to  his  use,  and  so  would,  in  an  action  of 
debt  for  the  rent,  form  a  legitimate  subject  of  set-ofiF.  And  though 
in  replevin  a  general  set-oif  cannot  be  plfeaded,  yet  the  Courts  have 
given  to  the  tenant  the  benefit  of  a  set-off  as  to  payments  of  this 
description,  by  holding  them  to  be  in  fact  payments  of  the  rent  itself 
or  of  part  of  it,"  It  would  seem  from  the  judgment  in  Jones  v. 
Morris,  ubi.  sup.,  that  the  ground  upon  which  the  landlord  is  pre- 
sumed to  authorise  these  payments  is  that  he  impliedly  undertakes 
to  protect  the  tenant  against  claims  in  respect  of  them.  "  The 
principle,"  said  the  Court  in  this  case,  "  of  the  cases  which  have 
decided  that  a  plaintiff  in  replevin  may,  in  bar  to  an  avowry  for  rent 


PAYMENT    OF    RENT.  171 

*is  obvious,  for  the  hardship  would  be  excessive  r*i  on-i 
on  the  tenant,  if  he  were  compelled  to  pay  his 

in,  arrear,  plead  payments  made  to  a  ground  landlord,  or  other  incum- 
brancer, having  claims  paramount  to  that  of  the  immediate  landlord 
making  the  distress,  is  that  the  comjyulsori/  pn^ment  hy  the  tenant  of 
ground  rent  or  other  like  charge,  ^*,s•  in  truth  a  partial  eviction  ;  and 
the  landlord  is  presumed  to  authorise  the  payment  by  the  tenant  of 
bis  rent  to  those  who  have  a  claim  on  the  land  paramount  to  his 
own,  and  against  which  (as  being  a  partial  eviction)  he  is  bound  to 
protect  the  party  holding  under  him.  If,  at  the  time  of  the  demise, 
it  had  been  expressly  stipulated  that  the  tenant  might  so  apply  his 
rent,  or  a  competent  part  of  it,  no  question  could  arise;  and  even 
though  no  such  stipulation  has  been  made  in  express  terms,  yet  the 
law  considers  it  as  implied  vin  every  contract  of  demise.  Such  pay- 
ments are,  therefore,  payments  of  rent."  It  appears  from  the  same 
case  that  the  proper  plea,  in  order  to  take  advantage  of  these  pay- 
ments in  replevin,  is  riens  in  arrere.  A  mere  claim  by  a  mortgagee 
of  the  premises  to  the  rent  does  not  full  within  the  principle  of  these 
decisions,  and  cannot  be  set  up  by  the  tenant  in  answer  to  his  land- 
lard's  demand  of  the  rent.  See  Wilton  v.  Duun,  17  Q.  B.  294.  In 
this  case  the  action  was  brought  for  use  and  occupation.  The  defend- 
ant pleaded  that  the  occupation  was  by  leave  of  the  plaintiff,  who 
was  mortgagor  in  possession,  that  after  the  occupation  the  mortgagee 
who  was  entitled  to  the  land  during  the  whole  period  of  occupation 
gave  notice  to  the  defendant  claiming  the  mesne  profits,  and  that  the 
latter  was  until  this  notice  ready  and  willing  to  pay  the  plaintiff,  and 
since  it  had  been  given  had  become  liable  to  pay  the  mortgagee. 
The  Court  held  that  this  plea  afforded  no  defence  at  law ;  although 
it  might  be  that  an  actual  payment  to  the  mortgagee  under  the  pres- 
sure of  his  claim  would  have  been  a  defence.  It  must  not  be  inferred 
from  these  cases  that  the  action  for  muney  paid  will  lie  whenever  one 
person  discharges  the  debt  of  another.  In  order  to  maintain  this 
action  it  must  be  shown  that  the  money  sought  to  be  recovered  was 
paid  at  the  request  either  express  or  'implied  of  the  defendant.  It  is 
not  indeed  necessary  that  it  sliould  be  paid  in  discharge  of  a  deht  of 
the  defendant,  but,  unless  this  be  the  case,  an  actual  request  must  be 
proved  ;  the  law  will  not  imply  one.  Where,  however,  the  payment 
is  on  account  of  a  debt  due  from  the  defendant  no  actual  request  is 


172  LANDLORD    AND     TENANT. 

r*T^n  ^^^^^  *rent  in  hard  cash,  and  yet  his  goods  were 
to  remain  hable  to  distress  on,  account  of  the 

r*l'^'>l  i^^gl^ct  *of  his  immediate  lessor  to  pay  that 
which  was  justly  due  to   the  head  landlord. 

necessary,  but  it  is  sufficient  if  the  circumstances  under  which  it  was 
made  show  that  an  implied  request  took  place.  See  Grissell  v.  Rob- 
inson, 3  Bing.  N.  C.  10,  (82  E.  C.  L.  R.  15,)  ;  Pawle  v.  Gunn,  4 
Bing.  N.  C.  445,  (33  E.  C  L.  R.  40G,) ;  Lubbock  v.  Tribe,  3  M.  & 
W.  607;*  Brittain  v.  Lloyd,  14  M.  &.  W.  762  ;*  Gumming  v.  Bed- 
borough,  15  M.  &  W.  438;*  Pollock  v.  Stables,  12  Q.  B.  765,  (64 
E.  C.  L.  R.  765,) ;  and  Lewis  v.  Campbell,  8  C  B.  541,  (65  E.  C. 
L.  R.  541,).  In  Spencer  v.  Parry,  3  A.  &  E.  331,  (30  E.  C.  L.  R 
166,)  a  tenant  agreed  with  his  landlord  to  pay  some  taxes,  which  by 
statute,  were  due  from  the  landlord,  but  omitted  to  do  so.  The 
landlord  was  obliged  to  pay  them,  and  afterwards  sued  the  tenant  for 
money  paid  to  his  use.  It  was  held  that  the  landlord  could  not  sue 
in  this  form  of  action,  since  the  money  which  he  had  paid  had  not 
been  paid  in  discharge  of  any  liability  of  the  tenant,  except  that  which 
arose  from  his  special  contract  with  the  landlord.  This  appears  to 
be  a  strong  case,  for  the  money  was,  at  least  as  between  the  landlord 
and  the  tenant,  the  debt  of  the  latter,  and  the  circumstances  might 
perhaps  have  been  considered,  consistently  with  the  other  decisions 
on  this  subject,  to  be  sufficient  to  show  that  he  impliedly  requested 
the  landlord  to  pay  it.  See  also  Brittain  c  Lloyd,  14  M.  &  W.  762  ;* 
where  it  was  held  that  an  auctioneer,  who  had  been  compelled  to  pay 
the  auction  duty  on  a  sale  of  lands  by  auction,  might  recover  the 
amount  from  his  employer  in  this  form  of  action.  In  Hunter  v.  Hunt, 
1  C.  B.  300,  (50  E.  C.  L.  R.  300,)  several  underlessees  held  separate 
portions  of  premises  at  distinct  rents,  the  whole  of  which  was  held 
under  one  original  lease  at  an  entire  rent,  and  one  of  them  who  was 
threatened  with  a  distress  by  the  assignee  of  the  reversion  on  the 
original  lease  paid  the  whole  of  the  rent.  It  was  held  that  he  could 
not  recover  from  the  oth6r  underlessees  as  money  paid  the  proportions 
of  the  rent  which  were  due  from  them.  It  will  be  observed  that  in 
this  case  the  underlessee  who  had  paid  the  rent,  and  the  other  under- 
lessees  whom  he  sued,  were  entire  strangers  so  far  as  related  to  the 
sum  in  dispute,  and  it  is  obvious  that  there  was,  under  the  circum- 
stances no  implied  contract  between  them  with  respect  to  it. 


1 


PAYMENT     OF     RENT.  173 

And  there  is  no  way  of  preventing  this  hardship  from 
occnrring,  except  by  allowing  him  to  protect  himself 
by  paying  the  head  landlord's  demand,  and  setting  it 
off  against  that  on  himself  This  he  is  therefore 
allowed  to  do,  and  it  is  not  necessary  to  found  his  right 
to  do  so,  that  the  head  landlord  should  have  actually 
threatened  to  distrain  upon  him ;  it  is  enough  that  he 
has  demanded  payment,  for  a  demand  by  one  who  has 
the  power  to  distrain  is  treated  as  equivalent  to  a 
threat  of  distress,  and  to  use  the  expressions  of  the 
Lord  Chief  Justice  Best,  in  Carter  r.  Carter,  5  Bing. 
406,  (15  E.  C.  ]j.  R.  643,)  payment  to  such  a  person  is 
no  more  voluntary  on  the  part  of  the  tenant  than  a 
donation  would  be  voluntary  which  was  made  to  a 
beggar  who  presented  a  pistol  while  he  asked  charity.^^ 

*Upon  a  similar  footing  stands  the  general  j-^,  oo-i 
land  tax,  where  it  has  not  been  redeemed  ;  stat. 
38  Geo.  3,  c.  5,  s,  17,  enacting  that  the  tenants  of 
houses  and  lands  rated  to  it  shall  pay  the  tax,  and  de- 
duct the  amount  from  the  rent  due  to  their  landlords. 
See  on  construction  of  this  enactment,  Stubbs  v.  Par- 
sons, 3  B.  &  A.  516,  (5  E.  C.  L.  R.  299,). 

[The  landlord's  property  tax,  and  the  tithe  rent- 
charge  are  also  payments  in  the  nature  of  cross  de- 
mands, which  are  practically  thrown  in  the  first 
instance  on  the  tenant,  and  which  he  is  entitled  to 
have  deducted  from  his  rent.  See  the  5  Sc  6  Vic.  c. 
35 ;  Schedule  A,  No.  IV.  llule  9 ;  and  the  6  and  7 
Wm.  4,  c.  71,  s.  80.^-^] 

"  See  Valpy  v.  Manley,  1  C.  B.  594,  (50  E.  C.  L.  R.  594,). 

^*  See  as  to  how  far  the  statutory  rights  of  the  parties  in  these 
respects  may  be  varied  by  express  contract,  aii/e,  pp.  99,  100,  notes. 
As  to  deducting  the  property  tax,  see  Franklin  v.  Carter,  1  C.  B. 
750,  (50  E.  C.  L.  R.  750.)  If  the  tenant  pays  the  tax,  and  omits 
to   deduct    it    in    his  next   payment  of   rent,  he   cannot  afterwards 


174  LANDLORD    AND    TENANT. 

Tliere  is  another  case  in  which  the  landlord  or  his 
representative  sometimes  lays  claim  to  a  payment  less 
in  amount  than  the  whole  sum  reserved.  This  happens 
where  the  landlord  is  the  owner  of  a  particular  estate 
which  determines  before  the  arrival  of  the  day  prefixed 
for  payment.  Suppose,  for  instance,  that  A.  being 
seised  for  life,  demises  to  B.  for  ten  years,  and  dies 
before  the  expiration  of  that  term,  and  in  the  middle 
of  a  quarter ;  or  suppose  that  A.,  being  seised  for  B.'s 
life,  leases  to  C.  for  ten  years,  and  C.  dies  during  the 
middle  of  a  quarter ;  in  these  and  such  cases  as  these, 
r*l'^-n  ^^^^  *question  instantly  arises,  what  is  to  be 
done  with  regard  to  the  rent  ?  Is  the  landlord, 
on  the  one  hand,  to  have  the  whole  quarter's  rent ;  or 
is  the  tenant,  on  the  other  hand,  to  pay  nothing  1  Or 
is  there  to  be,  as  justice  would  seem  to  require,  a  rate- 
able apportionment  ] 

Now,  at  common  law,  the  tenant  would  in  these 
cases  have  had  the  land  without  paying  any  rent  at  nil ; 
for  it  was  a  maxim  that  the  claim  for  rent  did  not 
accrue  day  by  day,  as  that  for  interest  on  a  loan  does, 
but  accrued  all  at  once  on  the  arrival  of  the  time 
prefixed  for  payment.  x\nd,  if,  therefore,  the  landlord's 
interest  determined  previously  to  that  day,  it  deter- 
mined also  the  lease  derived  out  of  it  at  a  time  when 
nothing  was  yet  due,  and,  as  the  relation  of  landlord 
and  tenant  was  at  an  end,  nothing  could  subsequently 
become  due,^^  In  order  to  remedy  this  inconvenience, 
the  stat  11  Geo.  2,  c.  19,  sec.  15,  enacted  that  on  the 

recover  the  amount  as  money  paid  to  the  use  of  his  landlord.     Gum- 
ming V.  Bedborough,  15  M.  &  W.  438.* 

^^  See  Chin's  Case,  10  Rep.  128  a,  and  Barwick  v.  Foster,  Cro. 
Jac.  227.  At  common  law  apportionment  took  place  when  there  was 
a  division  of  the  land  into  distinct  portions,  but  never  in  respect  of 
time.     See  Dumpor's  Case,  4  Rep.  119;   Viner  Ab.  Apportionment ; 


PAYMENT     OF     RENT.  175 

death  [before  or  on  the  day  on  which  the  rent  was  re- 
served] of  any  tenant  for  life  who  had  made  a  lease 
which  woukl  determine  on  his  death,  the  tenant  should 
pay  [the  whole  or]  a  rateable  proportion  of  the  rent  re- 
served to  the  executor  or  administrator  of  the  deceased, 
in  respect  of  the  time  which  had  elapsed  since  the  last 

rent-dav.     *It  Avas  doubted  whetlier   this  act    r^ir.--, 

1    looj 
would  have  comprised  the  case  of  a  landlord 

who  had  made  a  lease  of  property  of  which  he  was 
seised  for  the  life  of  another,  and  which  lease  conse- 
quently would  determine  on  that  other  person's  death, 
or  the  case  of  an  underlease  made  out  of  a  lease  for 
years  determinable  upon  lives.  However,  all  difficulties 
of  this  sort  are  now  removed,  for,  by  stat.  4  &  5  AYm. 
4,  c.  22,  all  leases  determinable  on  the  life  or  lives  of 
any  persons  whatever  are  brought  within  the  provisions 
of  the  Act  of  George  2.^°(Z>) 

and  the  judgment  of  Mr.  Justice  Littledale,  in  Slack  v.  Sharpe,  8  A. 
ct  E.  373,  (35  E.  C.  L.  R.  408,)  («). 

1*^  The  words  of  s.  15  of  the  11  Geo.  2,  c.  19,  are  as  follows  :— 
"  And  whereas  where  any  lessor  or  landlord,  having  only  an  estate 
for  life  in  the  lands,  tenements,  or  hereditaments  demised,  happens 
to  die  before  or  on  the  day  on  which  any  rent  is  reserved,  or  made 
payable,  such  rent,  or  any  part  thereof,  is  not  by  law  recoverable  by 
the  executors  or  administrators  of  such  lessor  or  landlord  ;  nor  is  the 
person  in  reversion  entitled  thereto,  any  other  than  for  the  use  and 
occupation  of  such  lands,  tenements,  or  hereditaments,  from  the 
death  of  the  tenant  for  life;  of  which  advantage  hath  been  often 
taken  by  the  under  tenants,  who  thereby  avoid  paying  anything  fur 
the  same  ;  for  remedy  whereof  be  it  enacted  by  the  authority  aforesaid, 
that  after  the  24th  day  of  June,  1738,  where  any  tenant  for  life  shall 


(o)  Bank  of  Pennsylvania  v.  Wise,  3  W.  404 ;  Cuthbert  o.  Kuhn, 
8  Wh.  357  ;  IngersoU  v.  Sergeant,  1  Wh.  337. 

(i)  Similar  enactments  have  been  made  in  the  United  States;  see 
in  Pennsylvania,  Act  24th  Feb.  1834,  §  2,  Pamph.  Laws,  p.  73. 


176  LANDLOKD    AND     TENANT. 

l-^,  op-i        *Fourtlily,  with  regard  to  the  mode  in  iddcli 
jpayment  of  rent  is  e)iforced. 

happen  to  die  before  or  on  the  day  on  which  any  rent  was  reserved 
or  made  payable  upon  any  demise  or  lease  of  any  lands,  tenements, 
or  hereditaments,  which  determined  on  the  death  of  such  tenant  for  life, 
that  the  executors  or  administrators  of  such  tenant  for  life  shall  and 
may  in  an  action  on  the  case,  recover  of  and  from  such  under-tenant  or 
under-tenants  of  such  lands,  tenements,  or  hereditaments,  if  such  tenant 
for  life  die  on  the  day  on  which  the  same  was  made  payable,  the 
whole,  or  if  before  such  day  then  a  proportion  of  such  rent  according 
to  the  time  such  tenant  for  life  lived,  of  the  last  year,  or  quarter  of 
a  year,  or  other  time  in  which  the  said  rent  was  growing  due  as 
aforesaid,  making  all  just  allowances,  or  a  proportionable  part  there- 
of, respectively."  The  4  &  5  Wm.  4,  c.  22,  came  into  operation  on 
the  16th  of  June,  1831.  By  s.  1  of  this  act  (after  reciting  that 
portion  of  the  11  Geo.  2,  c.  19,  which  relates  to  this  subject)  it  is 
enacted  that  "  rents  reserved  and  made  payable  on  any  demise  or 
lease  of  lands,  tenements,  or  hereditaments  which  have  been  and 
shall  be  made,  and  which  leases  or  demises  determined  or  shall 
determine  on  the  death  of  the  person  making  the  same  (although 
such  person  was  not  strictly  tenant  for  life  thereof),  or  on  the  death 
of  the  life  or  lives  for  which  such  person  was  entitled  to  such  here- 
ditaments, shall,  as  far  as  respects  the  rents  reserved  by  such  leases, 
and  the  recovery  of  a  proportion  thereof  by  the  person  granting  the 
same,  his  or  her  executors  or  administrators  (as  the  case  may  be),  be 
considered  as  within  the  provisions  of  the  said  recited  act.  By 
s.  2.  it  is  provided  that  after  the  passing  of  the  act  "  all  rents- 
service  reserved  on  any  lease  by  a  tenant  in  fee  or  for  any  life  inte- 
rest, or  by  any  lease  granted  under  any  power  (and  which  lease  shall 
have  been  granted  after  the  passing  of  this  act),  and  all  rents-charge, 
and  other  rents,  annuities,  pensions,  dividends,  moduses,  composi- 
tions, and  all  other  payments  of  every  description,  in  the  United 
Kingdom  of  Great  Britain  and  Ireland,  made  payable  or  coming  due 
at  fixed  periods  under  any  instrument  that  shall  be  executed  after 
the  passing  of  this  act,  or  (being  a  will  or  testamentary  instrument) 
that  shall  come  into  operation  after  the  passing  of  this  act,  shall  be 
apportioned  so  and  in  such  manner  that  on  the  death  of  any  person 
interested  in  any  such  rents,  &c.,  or  other  payments,  or  in  the  estate, 


ENFORCING     PAYMENT     OF     RENT.  177 

*I  have  already  mentioned,  that,  in  leasees    r.^.  o^*--, 
made  by  deed,  a  condition  enabling  the  lessor 

fund,  office,  or  benefice  from  or  in  respect  of  which  the  same  shall  be 
issuing  or  derived,  or  on  the  determination  by  any  other  means  what- 
soever of  the  interest  of  any  such  person,  he  or  she,  and  his  or  her 
executors,  administrators,  or  assigns,  shall  be  entitled  to  a  proportion 
of  such  rents,  &c.,  and  other  payments,  according  to  the  time  which 
shall  have  elapsed  from  the  commencement  or  last  period  of  p^iyment 
thereof  respectively  (as  the  case   may  be),  including  the  day  of  the 
death  of  such  person,  or  of  the  determination  of  his  or  her  interest, 
all  just  allowances  and  deductions  in  respect  of  charges  on  such  rents 
&c.,  and  other  payments  being  made ;  and  that  every  such  person, 
his  or  her  executors,  administrators,  and  assigns  shall  have  such  and 
the  same  remedies  at  law  and   in  equity  for  recovering  such  appor- 
tioned  parts  of  the  said   rents  &c.,  and  other  payments,  when  the 
entire  portion  of  which  such  apportioned  parts  shall  form  part  shall 
become  due  and  payable,  and   not  before,  as  he,  she,  or  they  would 
have  had  for  recovering  and  obtaining  such  entire  rents  &c.,and  other 
payments,  if  entitled  thereto,  but  so  that  persons  liable  to  pay  rents 
reserved  by  any  lease  or  demise,  and  the  lands,  tenements,  and  heredita- 
ments comprised  therein,  shall  not  be  resorted  to  for  such  apportioned 
parts  specifically  as  aforesaid ;   but  the  entire  rents  of  which  such 
portions  shall   form  a  part   shall  be  received  and  recovered  by  the 
person  or  persons  who,  if  this  act  had  not  passed,  would  have  been 
entitled  to  such  entire  rents;  and  such  portions  shall  be  recoverable 
from  such  person  or  persons  by  the  parties  entitled  to  the  same  under 
this  act  in  any  action   or   suit  at  law  or  in  equity."     By  s.  3,  it  is 
enacted  that  the  act  is  not  to  apply  "to  any  case  in  which  it  shall 
be  expressly  stipulated  that  no  apportionment  shall  take  place,  or  to 
annual  sums   made  payable  in  policies  of  assurance   of  any  descrip- 
tion."    It  will  be  observed,  that  under  these  statutes,  where  a  lease 
determines  on  the   death  of  the  lessor  (whether   strictly  tenant  for 
life  or  not),  or  on  the  death  of  the  person  for  whose  life  it  was  held, 
the  remedy  for  recovering  the  fraction  of  rent  which  is  made  payable 
by  the  statutes  in  respect  of  the  time  elapsed  since  the  last  period  of 
payment  is  given  to  the  personal  representative  of  the  lessor,  or  to 
the  lessor  himself,  as  the  case  may  be.     There  is,  in  these  cases,  no 
division  of  the  rent  between  the  lessor  or  his  representative  and  the 

12 


1/5  L  A  N  D  L  0  R  D    A  N  D    T  E  N  A  X  T. 

r*lSft1    ^^  *re-enter  and  put  an  end  to  the  demise  in 
case  of  the  non-payment  of  rent  or  the  non- 

« 

reversioner  or  remainder-man.  Where,  however,  the  lease  continues 
after  the  death  of  the  lessor,  and  the  rent  is  apportioned  between 
his  representative  and  the  heir  or  remainder-man,  the  entire  rent 
must,  if  reserved  on  lands,  &c.,  be  recovered  by  the  latter,  who  is 
bound  to  account  with  the  personal  representative  for  his  share  of  it. 
Several  cases  have  been  decided  upon  the  latter  of  these  acts.  It 
has  been  held  to  extend  to  Scotland.  Fordyce  v.  Bridges,  1  H.  of 
Lords'  C.  1.  It  does  not  apply,  it  would  seem,  where  the  landlord 
has  put  an  end  to  the  relation  of  landlord  and  tenant  by  his  own 
act.  Oldershaw  v.  Holt,  12  A.  &  E.  590,  (40  E.  C.  L.  R.  295.) 
It  will  be  observed,  that  it  applies  only  in  terms,  to  rents  &c.,  made 
payable  under  instruments  which  are  executed,  or  wills  which-  come 
into  operation,  after  the  passing  of  the  act ;  and  it  has  been  held,  in 
consequence  of  these  expressions,  that  it  does  not  extend  to  rents 
which  have  not  been  reserved  by  an  instrument  in  writing.  In  re. 
Markby,  4  Myl.  &  Cr.  484.  Nor  does  it  apply  as  between  the  per^ 
sonal  representative  and  the  heir  of  a  tenant  in  fee.  Browne  v. 
Amyot,  3  Hare,  173  ;  Beer  v.  Beer,  12  C.  B.  60,  (74  E.  C.  L.  R. 
60,).  Its  provisions  have  been  extended  to  the  rent-charge  substi- 
tuted for  tithes  by  the  Tithe  Commutation  Acts.  See  the  6  &.  7 
Wm.  4,  c.  71,  s.  86.  See  further  as  to  the  construction  of  these  acts, 
Lowndes  v.  Earl  of  Stamford,  21  L.  J.,  Q.  B.,  371 ;  and  Chitty's 
Statutes  (by  Welsby  and  Beavan),  tit.  Landlord  and  Tenant.  A 
recent  act,  which  has  taken  away  in  certain  cases  the  right  to  emble- 
ments and  has  allowed  to  tenants  an  extended  occupation  as  a 
compensation  for  the  loss  of  this  right,  contains  a  provision  for 
apportioning  the  rent  in  the  cases  to  which  it  relates.  See  the  14  & 
15  Vic.  c.  25,  s.  1,  by  which  it  is  provided,  that  where  the  lease  or 
tenancy  of  any  farm  or  lands  held  by  a  tenant  at  rack-rent  deter- 
mines by  the  death  or  cesser  of  the  estate  of  any  landlord  entitled 
for  his  life  or  for  any  other  uncertain  interest,  the  tenant,  instead  of 
claiming  emblements,  is  to  continue  to  occupy  until  the  end  of  the 
current  year  of  the  tenancy,  and  is  then  to  give  up  the  possession 
without  any  notice  to  quit.  And  the  succeeding  landlord  or  owner 
is  entitled,  under  this  statute,  to  recover  from  the  tenant,  in  the 
same  manner  as  the  original  landlord  could  have  done  if  his  interest 


ACTION.  irJ 

performance  of  the  covenants  is  usually  inserted,  and  I 
endeavored  to  explain  what  is  the  practical  effect  of 
such  a  condition."  Besides  this,  the  landlord  may- 
bring  an  action  to  recover  the  rent  in  arrear.  This 
action,  if  the  lease  be  by  deed,  may  be  either  in  the 
form  of  debt  or  covenant.  If  it  be  not  by  deed,  the 
action  of  covenant  will  not  lie,  as  that  is  always 
grounded  on  an  instrument  under  seal:  but  *the  j.;^.^  on-i 
landlord  may  bring  an  action  of  debt  on  simple 
contract,  or  of  assumpsit  for  the  use  and  occupation  of 
the  premises.^^  The  remedies  by  debt  and  covenant 
existed  at  common  law,  but  the  action  of  assumpsit  is 
given  by  stat.  11,  Geo.  '2,  c.  19,  s.  14,  the  effect  of 
which  you  will  find  discussed  in  Selwyn's  Nisi  ^^ 
Prius,  title  Use  and  Occupation}'^ {a)     *But  the    ^  -■ 

had  continued,  a  ftiir  proportion  of  the  I'ent  for  the  period  between 
the  death  of  the  original  landlord,  or  the  cesser  of  his  interest,  and 
the  giving  up  of  the  possession  by  the  tenant.  The  Lands  Clauses 
Consolidation  Act,  1845,  (8  &  9  Vic.  c.  18,)  also  authorises  the 
apportionment  of  the  rent  where  part  only  of  lands  comprised  in 
leases  for  term  of  years  is  taken  for  the  purposes  of  the  public 
undertakings  to  which  this  act  relates;  see  s.  119.  So,  where  pro- 
perty is  required  for  the  purposes  of  the  Church  Building  Acts, 
which  is  included  with  other  property  in  a  lease  or  underlease,  the 
rent,  and  any  fine  certain  to  be  paid  on  renewal,  may  be  apportioned, 
or  wholly  charged  on  the  part  of  the  property  which  is  not  required 
for  these  purposes.     See  the  17  &  18  Vic.  c.  32. 

"  See  ante,  p.  108. 

^'  Since  the  Common  Law  Procedure  Act,  1852,  (15  &  16  Vic.  c. 
76,)  forms  of  action,  although  not  abolished  so  far  as  they  have  any 
substantial  existence,  need  not  be  mentioned  in  the  writs  by  which 
actions  are  begun,  and  causes  of  action  of  different  kinds  (except  eject- 
ment and  replevin)  may  be  joined  in  the  same  suit.     See  ss.  8  &  41. 

^^  This  statute  enabled  the  landlord  to  bring  an  action  on  the  case 


[a)  See  Mason  v.  Beldham,  3  Mod.,  73. 

The  14th  sect.,  11  Geo.,  2  ch.  19  is  reported  by  the  judges  as  in 


180  LANDLORD    AND     TENANT. 

great  and  peculiar  remedy  of  landlords  is  that  by 
Distress. (a) 

for  use  and  occupation,  withoiTt  being  liable  to  be  defeated  by  proof 
of  a  parol  demise  or  agreement.  It  has  been  held  by  the  Court  of 
Queen's  Bench  that  the  action  of  debt  for  use  and  occupation  lies  at 
common  law,  and  cannot  be  defeated  by  proof  of  a  demise  (not  under 
seal)  reserving  a  certain  rent.  Gibson  v.  Kirk,  1  Q.  B.  850,  (41  E. 
C.  L.  E..  807,).  In  the  forms  of  pleading,  introduced  by  the  Common 
Law  Procedure  Act,  1852,  (15  &  16  Vic.  c.  76,)  the  expressions 
which  made  a  formal  distinction  between  the  actions  of  debt  and 
assumpsit  no   longer  occur.     In   order  to  support  an  action  for  use 

force  in  Pennsylvania.  The  action  for  use  and  occupation  is  a  tran- 
sitory action,  and  can  only  be  used  when  there  is  no  lease  or  agree- 
ment under  seal ;  it  is  founded  on  contract,  and  does  not  apply  to 
a  case  of  tortious  holding.  Blume  v.  McClusken,  10  Watts,  380 ; 
West  V.  Cartledge,  5  Hill,  488;  Codman  v.  Jenkins,  14  Mass.  93; 
Henwood  v.  Cheeseman,  3  Serg.  &  Ptawie,  500 ;  Pott  v.  Lesher,  1 
Yeates,  576;  and  the  holding  must  be  under  a  contract  of  demise, 
Kirtland  v.  Pounsett,  2  Taunt.,  145;  Wharton  «;.  Fitzgerald,  3  Dall., 
503  ;  Grant  v.  Gill,  2  Wh.  42;  McFarland  v.  Watson,  3  Comst.  286 ; 
Gilhooley  y.  Washington,  4  Comst.,  217;  Bancroft  v.  Wardell,  13 
Johns.  489.  Actual  occupation  is  not  necessary  to  support  the 
action;  it  is  enough  tiiat  the  defendant  might  have  occupied  had  he 
not  voluntarily  abstained  from  it.  McGunnagle  v.  Thornton,  10  S.  & 
II.  251 ;  Marseilles  v.  Kerr,  6  Wh.  504.  But  when  the  premises  are 
occupied  by  an  under-tenant  of  the  lessee,  the  lessee  is  liable,  as  if 
he  were  the  actual  occupant.     Moifat  v.  Smith,  4  Comst.,  126. 

In  the  late  case  of  Smith  v.  Eldridge,  15  Com.  B.,  236,-  (80  Eng. 
Com.  Law,  236,)  where  A.  entered  into  an  agreement  (in  writing) 
with  B.,  to  take  certain  premises  at  a  certain  yearly  rent,  the  premises 
to  be  put  in  repair  by  B.,  and  the  rent  not  to  be  payable  until  the 
repairs  were  completed;  A.  by  his  tenant  went  into  possession,  and 
occupied  the  premises  for  six  months,  and  then  quitted,  the  stipulated 
repairs  not  having  been  done: — Held  that  B.  was  entitled  to  maintain 
an  action  for  use  and  occupation,  as  upon  an  implied  agreement  to  pay 
so  much  as  the  occupation  might  be  reasonably  worth. 

(a)   See  note  to  pages,  154,  101. 


DISTRESS.  181 

*Distress  is  a  right  to  take  personal  chattels   r*i  ^i-i 
found  on  the  demised  premises  for  the  purpose 

'  and  occupation,  it  is  not  sufficient    that  the  land  or  premises  of  one 
person    soould  have  been  occupied   by  another;  there  must  be   an 
actual  contract  express  or  implied  to  pay  for  that  occupation.     See 
the  judgments  of  Mr.  Justice  Buller  in  Birch  v.  Wright,  1  T.  R. 
387;  and  of  Mr.  Justice  Bayley,  in  Hall  v.  Burgess,  5  B.  &  C.  333, 
(11  E.  C.  L.  R.  485,).     Any  lengthy  examination  of  the   cases  on 
this  subject  would   be  out  of  place   here,  because  in  dealing  in  the 
text  with  the  remedies  of  the  landlord,  it  is  assumed  that  the  rela- 
tion of  landlord  and  tenant  exists.     It   may  be  useful,  however,  to 
call  attention  to  some  of  the  later  cases  on  this  head.     In  Winter- 
bottom  V.  Ingham,  7  Q.  B.  611,  (53  E.  C.  L.  B.  611,)  the  vendee  of 
an  estate  was  suffered   to  enter  upon  the  premises  and   occupy  them 
whilst  the  title  was  under  investigation.     The  contract  of  sale  xVas 
subsequently  determined  for  want  of  title,  and  soon  afterwards  the 
purchaser  gave  up  the  possession.     It  was  held  that  the  vendor  could 
not  recover  for  the   occupation   during  the  time  when  the   title  was 
being  investigated,  although  the  jury  found  tliat  the   occupation  had 
been  beneficial.     In  Howard  v.  Shaw,  8  M.  &  W.  118,*  an  intending 
purchaser  was  let  into  possession  under   the  contract  of  sale.     The 
purchase   afterwards  went  off,  but  the  vendee  kept  possession  of  the 
premises  for  some  time.     The  Court  implied  under  these   circum- 
stances a  contract  on  the  part  of  the  vendee  to  pay  for  the  occupation 
which  took   place  subsequently  to  the   time  at  which  the  contract  of 
sale  had  gone  off.     It  may  perhaps  be  doubted  whether  the  decision 
is  altogether  consistent  with  the  other  authorities   on  this  subject; 
for  the  evidence  showed  that  the  vendee  kept  possession   after  the 
contract  of  sale  was  put  an  end  to,  not  with  any  intention  of  paying 
for  the  occupation,  but  in  order  to  indemnify  himself  against  the  loss 
of  a  portion  of  the  deposit  money  which  had  not  been  returned  to  him. 
See  also  Kirtland  v.  Pounsett,  2  Taunt.  145,  and  Hull  v.  Vaughan, 
0  Price,  157.     In   Tew  v.  Jones,  13  M.  &  W.  12,*  which  was  an 
action  for  use  and  occupation,  it  appeared   that  the  defendant  and 
another  person  had  conveyed  to  tlie  plaintiff  an  undivided  moiety  of 
several  houses  of  which  they  were  seised  as  devisees  in  trust  under  a 
will.     The  defendant  had  occupied  one  of  these  houses  for  a  number 
of  years  before  the  sale,  and   he   remained  in  possession   after  the 


182  LANDLORD    AND    TENANT. 

of  obtaining  pxiyment  of  the  rent  arrear.  It  is  a  mode 
of  proceeding  immemorially  known  to  the  common  law, 
and  exists  in  several  other  cases  not  arising  between 

landlord  and  tenant.'-"     It  is,  however,  with  relation  to 

• 

conveyance ;  but  as  there  was  no  evidence  of  any  express  contract 
between  him  and  the  plaintiff  in  respect  of  the  occupation  subse- 
quently to  the  sale,  it  was  held  that  the  action  could  not  be 
maintained.  In  order  to  support  this  action  under  the  statute,  it  is 
sufficient,  if  there  is  an  actual  holding  on  the  part  of  the  tenant,  and 
he  has  the  power  to  occupy  the  premises  so  far  as  depends  on  the 
landlord.  lie  is  therefore  liable,  although  the  demised  premises 
have  been  destroyed  by  fire.  See  Pindar  v.  Ainsley,  cited  in  the 
judgment  in  Belfour  v.  Weston,  1  T.  R.  312  ;  Baker  v.  Holtpzaffell, 
4  Taunt.  45  ;  Leeds  v.  Cheetham,  1  Sim.  146 ;  Izon  v.  Gorton,  5 
Bing.  N.  C.  501,  (35  E.  C.  L.  R.  198,)  ;  Packer  v.  Gibbins,  1  Q.  B. 
421,  (41  E.  C.  L.  R.  G07,) ;  Surplice  v.  Farnsworth,  7  M.  &  Gr.  57t), 
(49  B.  C.  L.  R.  576,) ;  and  ^jos?,  Lecture  VII.  But  an  actual 
entry  by  the  tenant  is  necessary.  Edge  v.  Strafford,  1  Cr.  &  J.  391  ;* 
and  Lowe  v.  Ptoss,  5  Exch.  553.  In  Smith  v.  Twoart,  2  M.  &  Gr. 
841,  (40  E.  C.  L.  R.  883,)  a  person  who  had  agreed  to  take  a  house 
sent  in  a  servant  to  clean  it,  obtaining  the  key  from  the  previous 
tenant,  and  also  caused  one  of  the  rooms  to  be  repaired.  It  was  held 
in  an  action  for  use  and  occupation,  that  this  was  sufficient  evidence 
of  occupation  to  go  to  the  jury.  See  also  Towne  v.  D'Heinrich,  13 
C.  B.  892,  (76  E.  C.  L.  R.  892,).  It  is  not  necessary,  however,  that 
the  tenant  should  occupy  person  all i/;  it  is  sufficient  if  he  allows 
another  person  to  occupy.  Bull  v.  Sibbs,  8  T.  R.  327 ;  Bertie  v. 
Beaumont,  16  East.  33  ;  Christy  v.  Tancred,  7  M.  &  W.  127  f  9  M. 
&  W.  438  f  12  M.  &  W.  316;*  and  Waring  v.  King,  8  M.  &  AV. 
571.*  If  a  lease  however  is  made  to  two  persons,  and  one  holds  over 
at  its  expiration  without  the  assent  of  the  other,  they  are  not  both 
liable  for  use  and  occupation.  Draper  v.  Crofts,  15  M.  &  W.  166.* 
It  would  seem  that  in  an  action  for  use  and  occupation  the  defendaut 
is  entitled  to  show  that  the  plaintiff's  title  expired  after  the  demise, 
and  before  the  period  in  respect  of  which  the  action  is  brought, 
although  there  has  not  been  any  eviction,  and  the  possession  has  not 
been  given  up  to  the  plaintiff.  See  Mountnoy  v.  Collier,  1  E.  &  B. 
630,  (72  E.  C.  L.  R.  630,). 

^0  See  1  Roll  Ab.  Distress  (E.)  (F.) ;  8  Rep.  41  a;  3  Black  Cora.  7. 


DISTRESS.  183 

those  persons  alone  that  I  am  to  consider  it,  and  in 
doing  so  it  is  necessary  to  enquire, 

1st.    What  the  landlord  may  distrain. 

2ndly.   Where  he  may  distrain. 

3rdly.   When  he  may  distrain. 

4thly.  Eoic  he  may  distrain. 

5thly.   Vyhat  he  must  do  with  the  distress. 

6thly.  What  are  the  tenants  remedies  if  the  distress 
be  wrongful. 

Now,  with  regard  to  the  first  point,  namely,  lohat 
may  the  landlord  distrain — the  general  rule  is,  that  all 
personal  chattels  found  on  the  premises  may  be  dis- 
trained for  rent,  whether  they  be  the  chattels  of  the 
tenant  or  of  a  third  person.  Gilb.  Distr.  33 ;  3  Black. 
Comm.  7.  But,  to  this  rule  *there  are  some  r^-iAni. 
exceptions,  militating  both  ways,  for  there  are 
several  cases  in  which  personal  chattels  found  upon  the 
demised  premises  are  protected  from  the  landlord's  dis- 
tress, and  there  are  others  again  in  which  things  which 
are  not  personal  chattels  and  therefore  are  not,  accord- 
ing to  the  rule  I  have  just  stated  (which  is  that  of  the 
common  law  and  applies  to  personal  chattels  only), 
liable  to  distress,  have  been,  by  the  enactments  of  par- 
ticular statutes,  rendered  distrainable.  (a) 

[a)  The  distress  is  taken  merely  by  way  of  pledge  for  the  rent, 
originally  there  was  no  provision  for  its  sale  if  not  redeemed, — now, 
however,  the  distrainor  is  allowed  after  the  lapse  of  a  certain  number 
of  days,  fixed  .by  statute,  usually  five,  within  which  the  tenant  may 
replevy,  to  sell  the  distress  and  apply  the  proceeds  towards  the  pay. 
ment  of  the  rent.  The  original  character  of  the  distress  occasioned 
an  exception  of  all  perishable  articles.  They  could  not  be  distrained 
because  they  could  not  be  returned  in  the  condition  in  which  they 
were  taken.  Given  v.  Bland,  3  Blackford,  64 ;  Morlcy  v.  Pencombe, 
2  Exchequer,  101. 

In  Pennsylvania   by  the  Act  of  1849,  property  to  the  value  of 


184  LANDLORD    AND     TENANT. 

There  are,  I  have  just  said,  certain  cases  in  which 
personal  chattels  found  on  the  demised  premises  are 
exempted  from  the  landlord's  distress.  You  will 
find  those  enumerated  and  classified  in  the  celebrated 
case  of  Simpson  v.  Hartopp,  Willes,  512,^^  where  the 
Lord  Chief  Justice  Willes,  who  is  himself  the  reporter 
of  the  case,  states  in  his  judgment,  that  there  are  some 
things  absolutely,  some  conditionally,  privileged  from 
being  subjects  of  distress.  Thus,  in  the  first  place,  ^/la:- 
tures  or  things  annexed  to  tlie  freehold  are  absolutely 
privileged  against  it,"-^  a  class  upon  which  I  need  hardly 

2^  See  the  notes  to  this  case,  1  Smith's  L.  C.  191. 

22  See  Co.  Litt.  47  b.  In  Gorton  v.  Falkner,  4  T.  R.  567,  Lord 
Kenyon  lays  down  this  rule  in  the  following  terms — ''  We  may  lay  it 
down  as  a  general  proposition,  that  at  this  time  all  movable  chattels  are 
distrainable,  whatever  may  have  been  said  in  ancient  times  to  restrain 
the  distress  on  those  things  which  partook  of  the  profits  of  the  soil. 
Now,  not  only  living  animals,  but  also  inanimate  things,  may  be  dis- 
trained. But  to  this  general  proposition  there  are  several  exceptions ; 
some  things  are  exempt  from  being  distrained  on  account  of  the  place, 
and  others  on  account  of  the  things  themselves.  The  anvil  in  the 
smith's  shop,  and  the  millstone,  are  privileged,  because  they  are 
affixed  to  the  freehold ;  and  a  temporary  removal  of  the  one  or 
the  other  for  the  purpose  stated  in  the  argument  (the  purpose  of 
cleaning  them)  is  not  sufficient  to  destroy  that  privilege."  Another 
reason  why  fixtures  are  not  distrainable  is,  that  as  they  cannot  be 
severed  without  injury,  it  is  not  possible  to  restore  them  in  the  same 
condition  as  when  they  were  seized  ;  and,  at  common  law,  a  distress 
being  a  mere  pledge,  nothing  could  be  distrained  which  could  not  be 
returned  in  the  same  plight;  Termes  de  la  Ley,  Distress,  69  a;  Co. 
Litt.  47  a;  a  rule  which  is  still  in  force,  subject  to  some  statutory 
exceptions  as  to  growing  crops  and  matters  of  this  nature.  Morley 
V.  Pincombe,  2  Exch.  101.     It  is  also  explained  in  the  judgment  of 

three  hundred  dollars,  exclusive  of  all  wearing  apparel  of  the  de- 
fendant and  his  family,  and  all  bibles  and  school  books  in  use  in  the 
family  is  exempted  from  levy  and  sale  on  execution,  or  by  distress 
for  rent.— Act  9th  April,  1849.    §  1,  Pam.  Law,  p.  533. 


DISTRESS.  185 

liave  observed,  since  I  had  confined  the  description  of 
things  liable  to  be  distrained  to  chattels  personal.     It 

the  Court  of  Exchequer,  in  Hellawell  v.  Eastwood,  6  Exch.  311, 
that  what  is  affixed  to  the  freehold  becoraes  part  of  the  thing  demised, 
and  the  nature  of  a  distress  is  not  to  resume  part  of  the  thing  itself 
for  the  rent,  but  only  the  inducta  et  illata  upon  the  soil  or  house. 
The  following  cases  will  show  the  application  of  the  rule  that  fixtures 
are  not  distrainable.  In  Niblet  v.  Smith,  4  T.  R.  504,  it  was  held 
that  a  lime-kiln  affixed  to  the  freehold  could  not  be  distrained.  Fix- 
tures, such  as  kitchen  ranges,  stoves,  coppers,  and  grates  are  not 
distrainable,  although  they  may  be  removed  by  the  tenant  during 
the  term.  Darby  v.  Harris,  1  Q.  B.  895,  (41  E.  C.  L.  R.  828,).  In 
Wiltshear  v.  Cottrell,  1  E.  &  B.  674,  (72  E.  C.  L.  R.  674,)  it  was 
held  that  a  granary,  resting  by  its  mere  weight  upon  staddles  built 
into  the  land,  was  not  a  fixture  within  the  meaning  of  a  deed  by 
which  all  the  fixtures  appertaining  to  a  farm  were  conveyed.  In 
many  of  the  cases  on  this  subject,  questions  have  arisen  as  to  the 
degree  of  annexation  which  is  necessary  in  order  to  bring  particular 
articles  within  the  rule  which  exempts  fixtures  from  distress.  In 
Duck  V.  Braddyll,  M'Cl.  217,  it  was  doubted  whether  machinery  bolted 
to  the  floor  of  a  factory  was  distrainable.  In  Trappes  v.  Harter,  2  Cr. 
&  M.  177,*  Lord  Lyndhurst  said  :  <<  The  screwing  of  a  stocking-frame 
to  the  floor  to  keep  it  steady  would  not  make  it  a  fixture."  The 
judgment  of  the  Court  of  Exchequer,  in  Hellawell  v.  Eastwood,  6 
Exch.  2D5,  throws  great  light  on  this  subject.  In  this  case  a  por- 
tion of  some  machinery  used  for  the  purpose  of  spinning  cotton  was 
fixed  by  screws  to  the  wooden  floor  of  a  mill,  and  another  part  of 
it  was  fastened  by  screws  sunk  into  holes  in  the  stone  flooring, 
secured  by  molten  lead  poured  into  them.  It  was  held  that  this 
machinery  was  distrainable  for  rent.  In  delivering  the  judgment  of 
the  Court,  Baron  Parke  said,  in  reference  to  the  question  whether 
the  machines,  when  fixed,  were  parcel  of  the  freehold :  "  This  is  a 
question  of  fact  depending  on  the  circumstances  of  each  case,  and 
principally  on  two  considerations :  first,  the  mode  of  annexation  to 
the  soil  or  fabric  of  the  house,  and  the  extent  to  which  it  is  united 
to  them  ;  whether  it  can  easily  be  removed,  inteyrf',  salve,  el  commode 
or  not,  without  injury  to  itself  or  the  fabric  of  the  building;  secondly, 
on  the  object  and  purpose  of  the  annexation ;  whether  it  was  for  the 


186  LANDLORD    AND    TENANT. 

r#i  4 o-i   iiiay,  however,  be  -worth  *while  to  remark  a  dif 
ference  which  exists  in  this  respect  between 

permanent  and  substantial  improvement  of  the  dwelling,  in  the 
language  of  the  Civil  Law,  perpetui  usiis  causa,  or  in  that  of  the  Year 
Book,  poHr  nn  profit  de  V inheritance  (20  Hen.  7,  13),  or  merely  for 
a  temporary  purpose,  or  the  more  complete  enjoyment  and  use  of  it 
as  a  cliattel.  Now,  in  considering  this  case  we  cannot  doubt  that 
the  machines  never  became  part  of  the  freehold.  They  were  attached 
slightly,  so  as  to  be  capable  of  removal  without  the  least  injury  to 
the  fabric  of  the  building,  or  to  themselves;  and  the  object  and 
purpose  o'f  the  annexation  was,  not  to  improve  the  inheritance,  but 
merely  to  render  the  machines  steadier,  and  more  capable  of  con- 
venient use  as  chattels.  They  were  never  a  part  of  the  freehold  any 
more  than  a  carpet  would  be  which  is  attached  to  the  floor  by  nails, 
for  the  purpose  of  keeping  it  stretched  out,  or  curtains,  looking- 
glasses,  pictures,  and  other  matters  of  an  ornamental  nature,  which 
have  been  slightly  attached  to  the  walls  of  the  dwelling  as  furniture 
and  which  is  probably  the  reason  why  they  and  similar  articles  have 
been  held,  in  different  cases,  to  be  removable.  The  machines  would 
have  passed  to  the  executor  (per  Lord  Lyndhurst,  C.  B. ;  Trappes  v. 
Harter,  2  C.  &  M.  177,).  They  would  not  have  passed  by  a  convey- 
ance or  demise  of  the  mill.  They  never  ceased  to  have  the  character 
of  movable  chattels,  and  were  therefore  liable  to  the  defendant's 
distress.  See  also  Lane  v.  Dixon,  8  C.  B.  776,  (54  E.  C.  L.  E.  776,) ; 
and  Wood  v.  Hewitt,  8  Q.  B.  913,  (55  E.  C.  L.  R.  913,).  Where  a 
landlord  distrains,  amongst  other  things,  goods  which  are  not  dis- 
trainable  (as,  for  instance,  looms  which  are  in  work,  there  being  on 
the  premises  other  goods  sufficient  to  satisfy  the  rent),  and  the  tenant 
in  order  to  obtain  a  withdrawal  of  the  distress,  pays  the  amount  of 
the  rent  and  the  costs,  he  is  entitled,  in  an  action  of  trespass  to 
recover  only  the  actual  damage  caused  by  the  taking  of  the  privileged 
goods,  and  not  the  whole  amount  of  the  money  which  he  has  paid. 
Harvey  v.  Pocock,  11  M.  &  W.  740.*  No  one  can  acquire  a  right 
by  his  own  wrongful  act,  and  therefore,  if  a  landlord  severs  fixtures 
under  a  distress,  the  tenant  mny  bring  trover  for  them,  and  describe 
them  as  goods  and  chattels,  although  trover  will  not  lie  for  fixtures 
unsevercd  from  the  freehold.  Dalton  v.  Whittem,  3  Q.  B.  961,  (43 
E.  C.  L.  R.  1056,) ;  Boffey  v.  Henderson,  17  Q.  B.  574.  (79  E. 
C.  L.  B.  574.) 


DISTRESS.  187 

disfi-esses  and  executions,  fox  *  under  executions    r*i4^^-| 

by  Jie7'i  facias,  fixtiu'es,  wliicli  the  party  against 

whom   the  execution   issues   could  *have  re-   r*!^;:-! 

moved,  as  against  his  o^vn  immediate  landlord, 

may  be  seized  (see  Poole's  Case,  1  Salk.  368),  whereas 

Chief  Justice  Willes  lays  it  down  clearly,  in  the  case  I 

have  cited,  that  such  articles  are  not  seizable  under  a 

distress.(«) 

Again,  a  chattel  is  privileged  against  distress  \^hich 
is  upon  the  premises,  in  consequence  of  its  having  been 
delivered  to  the  owner,  to  he  ivrought,  ivorked  up,  or 
managed  in  the  way  of  his  trade  or  employment.  ■  Thus, 
if  I  have  sent  cloth  to  a  tailor  to  be  made  into  a  coat, 
or  if  I  send  my  horse  to  a  smith's  shop  to  be  shod,  or 
goods  to  a  factor  to  be  sold,  or  to  a  carrier  to  be  car- 
ried, this  cloth,  this  horse,  these  goods,  are  not  distrain- 
able  by  the  respective  landlords  of  the  persons  to  whom 
I  have  so  intrusted  them,  while  they  remain  upon  the 
premises  of  the  persons  for  the  above  purposes.  1  Inst. 
47  a;  Gisbourn  i\  Hurst,  1  Salk.  249;  Gilman  v.  Elton, 
3  B.  &  B.  75,(7.  R  C.  L.  R.  355,) ;  Thompson  v.  Mashiter, 

1  Bing.283,  (8  E.  C.  L.  R.  510,);  Matthias  v.  Mesnard, 

2  C.  &  P.  353,  (12  E.  C.  L.  R.  613,).  The  principle  on 
which  these  cases  have  proceeded  is  that,  in  a  commer- 
cial country  like  England,  the  interest  of  the  public,  as 
well  as  that  of  individuals,  requires  that  confidence 
should,  as  much  as  possible,  be  encouraged  and  kept 

alive  between  the  trader  *and  his  customers,     ^^  ,^ 

I    1461 
and,  therefore,  the   law  privileges  my  goods   ■-         -■ 

from  distress  while  in  the  custody  of  my  trader  in  the 

way  of  trade,  lest,  if  they  were  not  so  privileged,  I 

might  be  deterred  from  trusting  them  to  a  poor  and 

industrious  man  by  the  apprehension  that  if  his  rent 

should  fall  in  arrear  my  goods  might  be  appropriated 

(a)  Reynolds  r.  Shulcr,  5  Cowen,  323 


188  LANDLORD    AND    TENANT. 

to  the  payment  of  it.  Upon  this  general  principle  of 
public  policy  proceeds  the  case  of  Adams  v.  Grane,  1 
Cr.  &  M.  380;*  3  Tyi'wh.  326 ;  where  it  was  held  that 
goods  sent  to  an  auctioneer  for  sale  were  privileged 
from  being  distrained  for  his  rent.  "  It  is  the  interest 
of  the  public,"  said  Sir  John  Bayley,  "  to  bring  buyers 
and  sellers  together  at  fixed  j)laces.  This  privilege  is 
therefore  of  great  importance  to  the  owners  of  goods, 
who  should  not  be  exposed  to  the  risk  of  .losing  them 
from  the  default  of  the  parties  on  whose  premises  they 
are  deposited  for  that  purpose."  On  the  same  prin- 
ciple, proceeded  Brown  v.  Shevill,  2  A.  &  E.  138,  (29 
E,  C.  L.  R.  82,)  in  which  the  carcass  of  a  beast  sent  to  a 
butcher  to  be  slaughtered  was  held  to  be  privileged 
from  distress  in  respect  of  the  butcher's  rent.  Still, 
though  this  sort  of  privilege  is,  no  doubt,  very  benefi- 
cial, and  has,  to  use  the  words  of  Sir  John  Bayley,  in 
the  case  I  have  just  cited,  "  been  from  time  to  time  in- 
creased in  extent,  according  to  the  new  modes  of  deal- 
ing established  between  parties  by  the  change  of  times 
and  circumstances,"  the  Courts  have  latterly  shown  a 
strong  disposition  to  restrain  it  from  exceeding  the 
P^-.^^-.  limits  strictly  *warranted  by  that  principle; 
instances  of  which  disposition  on  the  part  of 
the  Courts  you  will  find  in  the  late  cases  of  Muspratt 
V.  Gregory,'l  M.  &  W.  633,*  [S.  C.  in  error,  3  M.  & 
W.  677,*]  and  Joule  v.  Jackson,  7  M.  &  W.  450.*-X«) 

2^  See  the  notes  to  Simpson  v.  Hartopp,  1  Smith's  L.  C  187. 
Lord  Coke  says  (Co.  Litt.  -17  a)  that  sacks  of  corn  or  meal  in  a  mill 
are  exempt;  meaning,  doubtless,  the  corn  of  customers  left  there  in 

(a)  The  American  cases  go  the  whole  length  of  the  doctrine  as 
laid  down  in  the  text,  and  e^en  further,  for  it  has  been  held  that 
when  the  business  of  the  tenant  is  such  as  naturally  to  draw  to  his 
premises  the  goods  of  other  people,  the  landlord  shall  not  be  allowed 
to  distrain  them  for  rent.     Thus  it  has  been  held  that  the  goods  of  a 


DISTRESS.  189 

Again,  tldngs  ivliicli  are  actually  in  some  'persoiibS  use 
are,  while  they  so  continue,  privileged  from,  being 
taken  by  way  of  distress  for  rent.  Thus  it  is  laid  down 
in  the  judgment  in  Simpson  v.  Hartopp,  which  I  have 
already  cited,  that  the  horse  on  which  a  man  is  actually 
riding,  the  tools  with  which  a  man  is  actually  working, 
are  exempt  from  distress.  And  this  again  is  founded 
on  reasons  of  public  policy,  for,  were  it  otherwise,  there 
might  be  great  danger  of  a  breach  of  the  peace  being 
occasioned  by  the  attempt  to  take  the  chattel  in  actual 
use  out  of  the  possession  of  the  person  using  it.-'(o) 

the  way  of  trade.  So,  silk  sent  to  a  silk  weaver  to  manufacture  into 
velvet  cannot  be  distrained.  Gibson  v.  Ireson,3  Q.  B.  39,  (43  E.  C.  L. 
E..  621,).  Goods  standing  on  the  premises  of  a  commission  agent  for 
sale  in  the  way  of  his  business,  as,  for  instance,  a  cab  in  the  han'ds  of 
an  agent  for  the  sale  of  carriages,  are  also  privileged  from  distress  for 
rent.  Findon  v.  M'Laren,  6  Q.  B.  891,  (51  E.  C.  L.  R.  891,).  Butitis 
otherwise  with  respect  to  horses  and  carriages  standing  at  livery.  Par- 
sons v..  Gingell,  4  C.  B.  545,  (56  E.  C  L.  R.  545,).  And  brewer's 
casks  sent  to  a  public  house  with  beer,  and  left  there  until  the  beer  is 
consumed,  are  not  protected.  Joule  v.  Jackson,  cited  above.  Goods  at 
an  auctioneer's  for  sale  are  privileged,  even  although  the  auctioneer 
may  have  acquired  the  occupation  of  the  place  of  sale  by  a  trespass. 
Brown  v.  Arundell,  10  C.  B.  54,  (70  E.  C.  L.  R.  54,).  So  are  goods 
which  are  deposited  by  an  auctioneer  for  the  purpose  of  sale  in  an  open 
yard  belonging  to  his  premises.  V/illiams  v.  Holmes,  8  Exch.  861. 
(20  E.  L.  &  Eq.  R.  360.) 

^  Co.  Litt.  47  a.     Other  things  privileged  from  distress  for  rent 

lodger  in  a  boarding  house,  and  cattle  received  by  a  tenant,  to  be  pas- 
tured for  hire,  are  exempt  from  distress  for  the  rent.  Brown  v.  Sims, 
17  S.  &  R.,  138;  Riddle  v.  Wcldeu,  5  Wharton,  9;  Cadwalader  v. 
Tindall,  8  Harris,  422  :  Youngblood  v.  Lowry,  2  McCord,  39 ;  Stone 
V.  Matthews,  7  Hill,  428.  In  New  York,  the  goods  of  a  lodger  in  a 
boarding  house  were  exempted  from  distress  by  the  revised  statutes. 
The  act  of  1846  has  abolished  distress  for  rent  altogether. 

((')  Goods  which  are  in  the  custody  of  the  law  cannot  be  distrained. 


190  LANDLORD    AXD    TENANT. 

r*  1  -im       *Tliings  falling  within  the  three  classes  which 
I  have  just  described,  namely,  those  which  are 

are  animals  in  a  wild  state,  wherein  no  one  has  a  valuable  propei'ty ; 
such  as  bucks  ami  does.  Dogs  are  also  mentioned  by  Lord  Coke  as 
protected.  Co.  Litt,  47  a.  It  appears  to  be  doubtful,  from  the 
judgment  of  the  Lord  Chief  Justice  Willes,  in  Davies  v.  Powell, 
Willes,  48,  whether  this  exemption  is  still  applicable.  But  it  may 
be  observed,  that  although,'  as  is  stated  in  the  judgment,  the  law  now 
undoubtedly  takes  notice  of  dogs  as  valuable  things  (Wright  v.  Eam- 
seot,  1  Saund.  83  ;  Binstead  v.  Buck,  2  W.  Bl.  HIT),  this  was  so 
also  at  the  time  when  the  rule  in  question  was  laid  down  by  Lord 
Coke  (see  Ireland  v.  Higgins,  Cro.  Eliz.  125) ;  and  the  property 
which  the  law  recognises  in  them,  and  in  other  animals  of  the 
like  nature,  which  do  not  serve  for  food,  is  only  a  base  property. 
They  are  not  considered  to  have  any  intrinsic  value.  See  4  Black. 
Comm.  285.  The  acts  of  parliament  which  make  the  stealing  of 
dogs  punishable  do  not  appear  to  affect  this  question.  Deer  kept  in 
a  privat-e  enclosure  may  be  distrained.  Davies  v.  Powell,  iihl  %up. 
Cattle  which  escape  out  of  the  land  of  a  stranger  upon  the  land  out 
of  which  the  rent  issues,  through  a  defect  of  the  fences  which  the 
tenant  is  bound  to  repair,  cannot  be  distrained  for  rent,  unless  the 
owner,  after  notice,  neglects  or  refuses  to  take  them  away.  See  2 
Leon.  7  ;  Dyer,  317  b  )  and  the  notes  to  Poole  v.  Longuevill,  2  Wms. 
Saund.  290.  Goods  in  the  custody  of  the  law  are  not  distrainable 
as,  for  instance,  goods  which  have  been  distrained  damage  feasant,  or 
taken  in  execution.  See  Co.  Litt.  47  a,  and  Peacock  v.  Purvis,  2 
Bro.  &  Bing.  362,  (6  E.  C.  L.  R.  183,).  But  this  exemption  does 
not  extend  to  goods  in  the  custody  of  a  messenger  under  a  fiat 
in  bankruptcy.  Briggs  v.  Sowry,  8  M.  &  W.  729.*  By  a  recent 
statute,  growing  crops  seized  and  sold  by  the  sheriff  and  left  on  the 
premises  arc  liable  to  be  distrained  in  default  of  any  other  distress. 
See  the  14  &  15  Vic.  c.  25,  andpos^,  p.  150  note.  Lastly,  the  cattle 
and  goods  of  the  guests  at  an  inn  are  also  protected  from  distress  so 
long  as  they  are  upon  the  premises.  Bac.  Ab.  Inns,  and  Innkeepers 
(B);  Crosier  v.  Tompkinson,  2  Ld.  Ken.  439. 

Hamilton  v.  Beedy,  3  McCord,  38  ;  Peirce  v.  Scott,  4  W.  &  S.,  344; 
Peacock  v.  Purvis,  2  Brod.  &  Bing.,  362,  (6  E.  C.  L.  R.  183,). 
By  the  common  law,  the  landlord  lost  his  rent,  if  an  execution  was 


DISTRESS.  191 

either  affixed  to  the  freehold,  or  are  on  the  premises 
for  the  purpose  of  being  dealt  with  by  the  owner  in 

levied  upon  the  tenant's  goods,  before  distress.  The  first  sect.,  8 
Ann.,  c.  14,  was  passed  to  remedy  this.  It  provides  "  that  no  goods 
or  chattels  whatsoever,  lying  or  being  in  or  upon  any  messuage,  lands 
or  tenements,  which  are  or  shall  be  leased  for  life  or  lives,  terms  of 
years,  at  will,  or  otherwise,  shall  be  liable  to  be  taken  by  virtue  of  any 
execution  on  any  pretence  whatsoever,  unless  the  party  at  whose  suit 
the  said  execution  is  sued  out,  shall,  before  the  removal  of  such  goods 
from  ofi"  the  said  premises,  by  virtue  of  such  execution  or  extent,  pay  to 
the  landlord  of  the  said  premises,  or  his  bailifi",  all  such  sum  or  sums 
of  money  as  are  or  shall  be  due  for  rent  for  the  said  premises  at  the 
time  of  the  taking  of  such  goods  or  chattels  by  virtue  of  such  exe- 
cution ;  provided  the  said  arrears  do  not  amount  to  more  than  one 
year's  rent;  and,  in  case  the  said  arrears  shall  exceed  one  year's  rent, 
then  the  said  party,  at  whose  suit  such  execution  is  sued  out,  paying 
the  said  landlord  or  his  bailiff,  one  year's  rent,  may  proceed  to  exe- 
cute his  judgment,  as  he  might  have  done  before  the  making  of  the 
act;  and  the  sheriff  or  other  olSccr  is  thereby  empowered  and  re- 
quired to  levy  and  pay  to  the  plaintiff,  as  well  the  money  so  paid  for 
rent,  as  the  execution  money." 

Under  this  statute  it  was  held  that  the  landlord  could  demand  only 
one  year's  rent.     Colyer  v.  Speer,  2  B.  &  B.  67,  (6  E.  C.  L.  R.  40,). 

If  there  were  several  executions,  still  the  landlord  could  claim  only 
one  year's  rent,  Dod  v.  Saxly  Str.,  1024. 

And  he  could  claim  only  the  rent  due  at  the  time  of  the  seizure, 
but  he  was  entitled  to  a  full  year's  rent,  though  he  had  been  in  the 
habit  of  remitting  some  portion  of  it  to  the  tenant.  Hoskins  v. 
Knight,  1  M.  &  S.,  245;  Williams  v.  Lewsey,  8  Bing.  28,  (21  E. 
C.  L.  R.  208,)  1  M.  &  Scott,  92 ;  Rent  payable  in  advance  might  be 
claimed.     Harrison  v.  Barry,  7  Price,  690. 

The  statute  applies  to  all  executions  at  the  suit  of  the  subject. — 
Henchett  V.  Kimpson,2  Wils.,  140;  Greaves  v,  D' Acastro,  Bunb,  194  ; 
St.  John's  Colleger.  Muvcott,  7  T.  R.,  259;  Dixon  v.  Smith,  1  Swans, 
457  ;  Thurgood  v.  Richardson,  5  M.  &  P.,  270 ;  Thurgood  v.  Rich- 
ardson, 7  Bing.,  428,  (20  E.  C  L.  R.  190) ;  same  case,  4  Car.  &  P., 
481,  (19  E.  C.  L.  R.,  612). 

The  sheriff  must  have  notice,  but  if  he  knows  that  the  rent  is  due, 


192  LANDLORD    AND    TENANT. 

the  way  of  his  trade,  or  are  in  actual  use,  are  ahsolutely 

r*  14-01   P-i^'il^gGcl  against  distress,  that  is,  are  *privi- 

leged   whether   there   are   or    are   not    other 

specific  notice  is  not  necessary.  Arnitt  v.  Garnett,  3  B.  &  A.,  440, 
(53  E.  C.  L.  K.  257,);  Smith  v.  Russell,  3  Taunt.,  400;  Andrews  v. 
Dixon,  3  B.  &  A  ,  645,  (5  E.  C.  L.  E.  371,) ;  Colyer  v.  Speer,  4 
Moore,  473,  2  B.  &  B.,  67,  (6  E.  C.  L.  R.  40,). 

Statutes  similar  in  spirit  have  been  passed  in  many  of  the  United 
States.  The  Pennsylvania  statute  of  1836,  sects.  83,  84  &  85  is  in 
these  words  :  \  83,  "  The  goods  and  chattels  being  in  or  upon  any 
messuage,  lands,  or  tenements,  which  are  or  shall  be  demised  for  life 
or  years,  or  otherwise  taken  by  virtue  of  an  execution,  and  liable  to 
the  distress  of  the  landlord,  shall  be  liable  for  the  payment  of  any 
sums  of  money  due  for  rent,  at  the  time  of  taking  such  goods  in  exe- 
cution;  provided  that  such  rent  shall  not  exceed  one  year's  rent." 

§  84,  "  After  the  sale  by  the  officer  of  any  goods  or  chattels,  as 
aforesaid,  he  shall  first  pay  out  of  the  proceeds  of  such  sale,  the  rent 
so  due,  and  the  surplus  thereof,  if  any,  he  shall  apply  towards  satis- 
fying the  judgment  mentioned  in  such  execution ;  provided,  that  if 
the  proceeds  of  the  sale  shall  not  be  sufficient  to  pay  the  landlord,  and 
the  costs  of  the  execution,  the  landlord  shall  be  entitled  to  receive 
the  proceeds,  after  deducting  so  much  for  costs,  as  he  would  be  liable 
to  pay  in  case  of  a  sale  under  distress." 

§  85,  "  Whenever  any  goods  or  chattels  liable  to  the  payment  of 
rent,  as  aforesaid,  shall  be  seized  in  execution,  the  proceedings  on  such 
execution,  shall  not  be  stayed  by  the  plaintiff  therein,  without  the 
consent  of  the  person  entitled  to  the  rent,  in  writing  first  had  and 
obtained." 

Under  this  and  the  former  statute  of  1772,  it  has  been  held  that 
the  rent  may  be  apportioned  in  favor  of  the  landlord,  up  to  the  time 
of  seizure.  West  v.  Sink,  2  Yeates,  274 ;  Binns  v.  Hudson,  5  Binn, 
505;  Morgan  v.  Moody,  6  W.  &  S.,  335;  Parker  &  Keller's  Appeal, 
5  Barr,  390.  See  Case  v.  Davis,  15  Penna.  State  Eep.,  (3  Harris.) 
80.  If  there  are  two  levies  the  landlord  may  claim  down  to  the  date 
of  the  last.  Worley  v.  Worley,  1  Trub.  &  H.  Pr.,  p.  734.  The 
landlord  is  entitled  to  his  rent  from  the  proceeds  of  an  execution  levied 
by  a  constable.     Seitzinger  v.  Steinberger,  2  Jones,  379. 

In  New  York,  New  Jersey  and  Alabama,  it  is  held  that  the  land- 


DISTRESS.  193 

articles  upon  the  premises  liable  to  be  distrained.  But 
there  are  some  things  which,  although  not  privileged 

lord  is  entitled  only  to  the  rent  due  at  the  time  of  the  seizure. — 
Hazard  v.  Raymond,  2  Johns.,  478 ;  Beekman  v.  Lansing,  3  Wend. 
447;  Schenck  v.  Vannut,  1  South.,  329;  Denham  v.  Harris,  13 
Ala.,  465 ;  Bowzer  v.  Scott,  8  Blackf.,  86. 

The  landlord  is  only  entitled  to  one  year's  rent.  The  number  of 
executions  makes  no  difference.  Van  Rensselaer  v.  Quackenboss,  17 
Wend.,  34. 

But  be  is  not  confined  to  the  last  year's  rent,  so  that  only  one 
year's  rent  be  received ;  nor  is  it  material  if  the  lessee  holds  under  a 
lease  subsequent  to  that  under  which  the  arrearages  are  due ;  the 
rent  in  the  latter  being  reserved  in  iron,  in  the  former  in  money. 
Parker  and  Keller's  Appeal,  5  Barr.  390  ;  Richie  v.  McCauIey,  4 
Barr.  471 ;  Ege  v.  Ege,  5  W.  134,  140. 

But  it  seems  when  the  sale  is  of  the  tenant's  goods,  under  an  exe- 
cution during  the  term  of  one  lease,  the  landlord  cannot  claim  rent 
agreed  to  be  paid  in  advance  on  another  lease  not  yet  commenced, 
Martin's  Appeal,  5  W.  &  S.  221. 

Having  taken  a  note  for  the  rent  will  not  prevent  the  landlord's 
claim  though  the  note  be  not  due.     Fife  v.  Irving,  1  Rich.  226. 

The  notice  to  the  sheriff  is  sufficient  if  given  at  any  time  before  the 
money  is  paid  over  to  the  plaintifi".   Beekman  v.  Lansing,  3  Wend.  447 

Costs  in  the  84th  section  of  the  Pennsylvania  Act  were  said  in 
the  District  Court,  Hennis  v.  Streeper,  1  Miles,  269,  to  be  the  costs 
of  the  execution  not  including  those  of  the  sheriff  for  executing  it. 

If  the  notice  is  disregarded  by  the  sheriff,  he  renders  himself 
liable.  Governor  v.  Edward,  4  Bibb.  219;  Colyer  v.  Speer,  4 
Moore,  473;  Calvert  v.  Joliffe,  2  B.  &  Adol.  418,  (22  E.  C  L.  R. 
178,);  Lane  v.  Crockett,  7  Price,  566;  Beeston  v.  Wright,  2  Doug. 
655;  Reed  v.  Thoyts,6  Mee.  &  W.  412;  Riseley  v.  Ryle,  10  Mee.  ifc 
W.  101 ;  Forster  v  Cookson,  1  Gale  &  D.  58 ;  1  Ad.  &  Ellis,  N.  S.  419, 
(41  E.  C.  L.  R.  606,);  Van  Renssalaer  v.  Quackenboss,  17  Wend.  34. 

The  rent  protected  is  that  due  to  the  immediate  landlord  of  the 
defendant.  Bromley  u.  Hopewell,  14  Penn.  State  R.  (2  Harris)  400; 
Contra  Thurgood  v.  Richardson,  5  M.  &  P.  270,  and  7  Ring.  428, 
(20  E.  C.  L.  R.  194,). 

The  landlord  loses  his  right  if  he  accepts  a  surrender  of  the  lease 

13 


104  LANDLORD    AND     TENANT. 

altogether  against  being  distrained,  are  privileged  con- 
ditionally^ that  is,  are  privileged,  unless  it  should  turn 
out  that  there  is  no  other  sufficient  distress  to  be  come 
by.  Of  this  description  are  beasts  of  the  plough,  in- 
struments of  husbandry,  and,  generally  speaking,  the 
instruments  of  a  man's  trade  and  profession.  See  Fen- 
ton  V.  Logan,  9  Bing.  676,  (23  E.  C.  L.  R.  756,);  Gor- 

after  the  levy,  for  he  thus  parts  with  his  right  to  distrain.  Greider's 
Appeal,  5  Barr.  4'23. 

The  landlord  is  not  entitled  to  claim  anything  under  the  execution 
for  which  he  could  not  distrain,  therefore  if  part  of  the  -annual  sum 
payable  to  the  landlord  is  made  up  of  compensation  for  the  use  of 
personal  property,  and  the  several  proportions  due  for  rent  of  the 
land,  and  for  the  use  of  the  chattels,  cannot  be  ascertained;  the 
landlord  cannot  claim  any  thing  from  the  sheriff.  Commonwealth  v. 
Contner,  6  Harris,  447.  Black,  C.  J.,  says,  "  The  rent  was  reserved 
by  the  lease  of  the  furnace,  and  of  personal  property,  consisting  of  a 
stove,  teams,  &c.  Now  a  sum  of  money,  payable  periodically,  for 
the  use  of  chattels,  is  not  rent  in  any  legal  sense  of  the  word.  It 
cannot  be  distrained  for;  and  unless  it  can,  it  is  not  demandable  out 
of  the  proceeds  of  a  sheriff's  sale  ;  for  this  right  comes  in  place  of  a 
distress  by  the  plain  words  of  the  statute.  Rent  must  not  only  issue  out 
0?  land,  but  it  must  be  fixed,  definite,  and  certain  in  amount,  whether 
payable  in  money,  chattels,  or  labor.  If,  therefore,  a  lease  so  mixes 
the  real  and  personal  property  together  that  it  cannot  be  determined 
how  much  of  what  is  called  the  rent  is  to  be  paid  for  the  chattels, 
and  how  much  is  the  profit  of  laod,  there  can  be  no  distress  for 
non-payment  of  it.  This  lease  stipulates  for  a  rent  of  ,^3,500  on  real 
and  personal  property  both.  But  they  may  be  separated.  There  is 
a  provision  in  it  that  when  the  tenant  buys  and  pays  for  the  personal 
property,  the  rent  shall  be  abated  to  S2,500.  From  this  we  may 
infer  that  the  rent  was  $2,500  for  the  furnace,  and  $1,000  for  the 
goods.  It  requires  a  very  liberal  construction  to  make  this  out  in 
favor  of  the  lessor.  But  after  careful  consideration  and  some  doubt, 
we  are  all  of  opinion  that  we  may  take  it  from  the  language  of  the 
lease  without  violating  either  the  natural  probabilities  of  the  case,  or 
any  received  rule  of  interpretation." 


DISTRESS.  105 

ton  V.  Falkner,  4  T.  R.  565.-^  Thus  Lord  Coke  says,  in 
the  1st  Inst.  47  a,  that  the  books  of  a  scholar  would 
be  privileged  in  the  first  instance  from  distress,  and  I 
suppose  that  this  exemption  would  include  a  lawyer's 
books  also,  though  it  is  right,  for  the  credit  of  the  pro- 
fession, to  say,  that  there  is  no  case  to  be  found  in 
which  the  question  has  been  raised. 

The  cases  I  have  been  enumerating  are  cases  of 
privilege  against  distress.  Now  there  are,  on  the  other 
hand,  some  cases  in  which  articles  not  falling  within 
the  general  description  of  things  distrainable,  are  yet 
rendered  so  by  a  sort  of  exception  to  the  general  rule. 
These  are  cases  included  within  the  enactment  of  stat. 
11  Geo.  2,  c.  19,  s.  8,  which  provides  that  landlords 
may  distrain  coiii^  grass ^  *or  other  prodiid.,  groic-  p^,  ^r.-. 
ing  on  any  ixirt  of  the  Jand  demised.-^     Such 

2*  Sheep  are  privileged  to  the  same  extent  as  beasts  of  the  plough. 
See  the  51  Hen.  3,  st.  4,  and  Co.  Litt.  47  a,  note.  Chattels  and 
animals  which  are  in  actual  use  cannot  be  distrained  even  damage 
feasant.  Field  v.  Adams,  12  A.  &  E.  649,  (40  E.  C  L.  R.  324,)  ; 
Bunch  V.  Kennington,  1  Q.  B.  679,  (41  E.  C  L.  R.  726,). 

2s  The  2  Wm.  &  M.  sess.  1,  c.  5.  s.  3,  gave  the  right  to  distrain 
"  sheaves  or  cocks  of  corn,  or  corn  loose  or  in  the  straw,  or  hay  lying 
or  being  in  any  barn  or  granary,  or  upon  any  hovel,  stack  or  rick,  or 
otherwise  upon  any  part  of  the  land  or  ground  charged"  with  the 
rent.  Under  this  act,  and  the  4  Geo.  2,  c.  28,  s.  5,  (which  gives  in 
respect  oi  rents-secJc  the  same  powers  of  distress  as  exist  in  the  case 
of  rents  reserved  upon  leases),  the  grantee  of  a  rent-charge  may  dis- 
train hay  or  straw  loose  or  in  the  stack.  Johnson  v.  Faulkner,  2  Q. 
B.  925,  (42  E.  C.  L.  E.  980,).  In  Miller  v.  Green,  2  Cr.  &  J.  142,* 
S.  C.  iu  error,  8  Bing.  92,  (21  E.  G.  L.  B.  459,)  it  was  held,  that 
the  right  to  distrain  growing  crops,  given  by  the  11  Geo.  2,  c. 
19,  could  not  be  exercised  by  the  grantee  of  an  annuity,  although 
the  deed  contained  a  power  to  distrain  for  the  arrears  and  to  dispose 
of  the  distress  in  the  same  manner  in  all  respects  as  distresses  for 
rents  reserved  upon  leases  for  years.     It  will  be  observed,  that  the 


196  LANDLORD    AND    TENANT. 

r*!--!-]    tilings  not  being  chattels  ^personal,  were  not 
distrainable  at   common  law,  and,  even  now, 

11  Geo.  2,  c.  19,  s.  8,  mentions  expressly  only  <•  lessors  or  land- 
lords ;"  but  the  language  of  the  2  Wni.  &  M.  sess.  1,  c.  5,  is  more 
general.  If  a  landlord  seizes  standing  corn  and  growing  crops  as  a 
distress  for  rent,  and  sells  them  before  they  are  ripe,  the  sale  is 
wholly  void.  Owen  v.  Legh,  3  B.  &  A.  470,  (5  E.  C.  L.  R.  273,). 
In  Proudlove  v.  Twemlow,  1  Cr.  &  M.  326,*  a  landlord  seized  grow- 
ing crops  and  sold  them  before  they  were  cut,  and  they  were  after- 
wards cut  and  taken  away  by  the  purchaser.  It  appeared,  however, 
that  they  were  sold  for  the  full  value  which  they  would  have  fetched 
if  sold  at  the  proper  time,  and  that  the  amount  produced  was  less 
than  the  amount  of  rent  due.  The  Court  held  that  the  tenant  could 
only  recover  nominal  damages.  Growing  corn  sold  under  an  execu- 
tion could  not,  until  recently,  be  distrained  for  rent  unless  the 
purchaser  allowed  it  to  remain  an  unreasonable  time  on  the  ground 
after  it  was  ripe.  Peacock  v.  Purvis,  2  Bro.  &  Bing.  362,  (6  E.  C. 
L.  R.  183,) ;  Wright  v.  Dewcs,  1  A.  &  E.  611,  (28  E.  C.  L.  R.  302,). 
But  now,  by  the  14  &  15  Vie.  c.  25,  s.  2,  growing  crops  seized  and 
sold  by  the  sheriff  under  an  execution  are  liable,  as  long  as  they 
remain  on  the  land,  to  be  distrained  for  the  rent  which  becomes  due 
after  the  seizure  and  sale,  provided  there  is  no  other  sufficient 
distress.  The  56  Geo.  3,  c.  50,  s.  1,  provides  that  "  no  sheriff  or 
other  officer  in  England  or  Wales  shall,  by  virtue  of  any  process  of 
any  court  of  law,  carry  off,  or  sell,  or  dispose  of,  for  the  purpose  of 
being  carried  off  from  any  lands  let  to  farm,  any  straw  thrashed  or 
unthrashed,  or  any  straw  of  crops  growing,  or  any  chaff,  clover,  or 
any  turnips,  or  any  manure,  compost,  ashes,  or  sea- weed,  in  any  case 
•whatsoever ;  nor  any  hay,  grass  or  grasses,  whether  natural  or  artifi- 
cial, nor  any  tares  or  vetches,  nor  any  roots  or  vegetables,  being 
produce  of  such  lands,  in  any  case  where,  according  to  any  covenant 
or  written  agreement,  entered  into  and  made  for  the  benefit  of  the 
owner  or  landlord  of  any  farm,  such  hay,  grass  or  grasses,  tares  and 
vetches,  roots  or  vegetables  ought  not  to  be  taken  off  or  withholden 
from  such  lands,  or  which,  by  the  tenor  or  effect  of  such  covenants 
or  agreements,  ouglit  to  be  used  or  expended  thereon,  and  of  which 
covenants  or  agreements  such  sheriff  or  other  officer  shall  have  re- 
ceived a  written  notice  before  he  shall  have  proceeded  to  sale."     By 


DISTRESS.  197 

the  statute  does  not  include  young  *trees  grow-  r*i  ^9-1 
ing  in  a  nursery  ground,  the  words  otlie'r  pro- 

s.  3  of  this  act  it  is  enacted  that  any  crops  or  produce  of  this  descrip- 
tion may  be  sold  by  the  sheriff,  subject  to  an  undertaking  to  expend 
them  on  the  land  according  to  the  custom  of  the  country,  or  accordin"' 
to  the  terms  of  any  covenant  or  written  agreement  which  has  been 
entered  into  by  the  tenant.  By  s.  6,  it  is  provided  that  "  in  all  cases 
where  any  purchaser  or  purchasers  of  any  crops  or  produce  herein- 
before mentioned,  shall  have  entered  into  any  agreement  with 
such  sheriff  or  other  officer,  touching  the  use  and  expenditure  thereof 
on  lands  let  to  farm,  it  shall  not  be  lawful  for  the  owner  or  landlord 
of  such  lands  to  distrain  for  any  rent  on  any  corn,  hay,  straw,  or 
other  produce  thereof  which,  at  the  time  'of  such  sale,  and  the  execu- 
tion of  such  agreement  entered  into  under  the  provisions  of  this  act, 
shall  have  been  severed  from  the  soil,  and  sold,  subject  to  such 
agreement,  by  such  sheriff  or  other  officer ;  nor  on  any  turnips, 
whether  drawn  or  growing,  if  sold  according  to  the  provisions  of  this 
act;  nor  on  any  horses,  sheep,  or  other  cattle,  nor  on  any  beast 
whatsoever ;  nor  on  any  wagons,  carts,  or  other  implements  of  hus- 
bandry, which  any  person  or  persons  shall  employ,  keep,  or  use  on 
such  lands  for  the  purpose  of  thrashing  out,  carrying,  or  consuming 
any  such  corn,  hay,  straw,  turnips,  or  other  produce  under  the  pro- 
visions of  the  act,  and  the  agreement  or  agreements  directed  to  be 
entered  into  between  the  sheriff  or  other  officer,  and  the  purchaser  or 
purchasers  of  such  crops  and  produce  as  hereinbefore  are  mentioned." 
Ey  s.  11  of  this  act  the  assignees  in  bankruptcy  and  insolvency,  and 
the  purchasers  of  the  goods,  stock,  or  crops  of  persons  engaged 
in  husbandry,  are  obliged  to  use  the  hay,  manure,  &c.,  and  other 
produce  and  dressings  of  the  lands  in  the  same  manner  as  the  tenant 
ought  to  have  used  them.  It  has  been  held  that  this  section  is  of 
general  application,  and  is  not  limited  to  sales  under  an  execution. 
Wilmot  V.  Rose,  3  E.  &  B.  568.  It  appears  to  be  settled,  after  some 
conflict  of  authority  on  the  subject,  that  where  hay  and  straw  is 
seized  under  a  distress,  and  the  tenant  is  under  covenant  to  expend 
it  upon  the  premises,  the  landlord  has  no  right  to  sell  it,  subject  to 
a  condition  that  the  purchaser  shall  consume  it  on  the  premises. 
See  Ridgway  v.  Lord  Stafford,  6  Exch.  404  ;  Abbey  v.  Fetch,  8  M. 
&  W.  419  ;*  and  Frusher  v.  Lee,  10  M.  &  W.  709.* 


lOS  LANDLORD    AND    TENANT. 

duct  being  construed  to  ai)ply  to  things  of  the  same 
sort  as  those  particularly  specified,  namely,  grass  and 
corn;  things  to  which  the  process  of  being  cut, 
gathered,  made  up,  and  laid  up,  when  ripe,  is  inciden- 
tal. See  Clark  v.  Gaskarth,  8  Taunt.  431,  (4  E.  C.  L. 
E.  216,).(rt)  Before  leaving  this  part  of  the  subject,  it 
is  right  to  mention  that,  though  there  are  some  things 
conditionally  privileged,  such  as  beasts  of  the  plough 
and  instruments  of  husbandry,  so  that,  before  they  are 
distrained,  the  landlord  must  resort  to  other  distrain- 
able  articles,  if  there  be  any ;  yet  he  is  not  obliged  to 
resort  to  grass  or  growing  corn  before  taking  the 
articles  conditionally  privileged ;  since,  as  the  privilege 
existed  at  common  law,  it  could  not  have  exempted 
tJiem  from  being  distrained  before  articles  which  were 
then  ahsolutely  exempt,  and  which  would  still  continue 
to  be  so,  were  it  not  for  the  provisions  of  a  particular 
statute.     Piggott  V.  Birtles,  1  M.  &  W.  441.* 

Having  thus  mentioned  what  the  landlord  may  and 
what  he  may  not  take  as  a  distress  for  rent,  the  next 
point  is,  lohere  is  he  to  clistrain?  And  tlie  general  rule 
r*l  ^'^^  ^^'  ^^^^  ^^^  must  distrain  goods  fomid  *upon 
the  premises  demised,  and  there  only ;  except, 
indeed,  in  the  case  of  her  Majesty,  who  by  the  special 
prerogative  of  the  Crown  may  distrain  on  all  her 
tenants'  lands,  wherever  situated,  and  of  whomsoever 
held.^^  But,  in  the  case  of  a  subject,  the  distress  must 
be  taken  on  the  demised  premises,'^^  a  ride  which  is 

2^  Com.  Dig.  Distress  (A.  3). 

28  See  Co.  Litt.  161  a,  and  Com.  Dig.  Distress  (A,  3)  (B,  1).  The 
statute  of  Marlebridge,  c.  15,  (52  Hen.  3),  enacted  that  no  one  save 
the  King  should  distrain  "  out  of  his  fee,  nor  in  the  King's  highway, 
nor  in   the  common    street.     See  as  to   this  statute,  which  was  in 

(a)  See  in  Pennsylvania,  7  sect.  Act  21st  March,  1772}  1  Smith's 
Laws,  371,  for  a  similar  enactment. 


DISTRESS.  199 

exemplified,  in  a  very  curious  case  of  Capel  v.  Buszard, 
6  Bing.  150,  (19  e/c.  L.  B.  75,).  In  that  case,  cer- 
tain premises  lying  opposite  to  the  river  Thames  were 
demised,  but  no  part  of  the  soil  of  the  river  itself 
was  demised.  The  landlord  distrained  a  barge,  at- 
tached to  the  demised  premises  by  ropes,  and  which 
lay  perpendicularly  over  the  soil  of  the  river,  between 
high  and  low  water-mark.  The  Court  of  Exchequer 
Chamber  held,  after  a  long  and  elaborate  argument, 
that  the  barge,  not  being  upon  the  demised  premises, 
was  not,  in  point  of  law%  distrainable. 

But  to  this  rule,  as  to  most  other  general  rules,  there 
are  certain  exceptions.  In  the  first  place,  it  is  laid 
down  in  the  1st  Inst.  161  a,  that,  if  the  landlord  come 
to  make  a  distress,  and  see  the  tenant's  cattle  feeding 
on  the  land  demised,  but  before  he  can  take  them,  the 
tenant  [or  any  other]  drive  them  off  the  land  to  pre- 
vent the  distress,  the  landlord  may  follow^  and  distrain 
them.^.^ 

affirmance  of  the  common  law,  the  2d  Inst.  131  ;  and  Gilbert  on 
Dist.  40.  A  distress  on  the  highway  would  seem  not  to  be  wholly 
void  but  only  irregular,  iZ>. 

2^  In  this  case,  by  a  fiction  of  law,  the  cattle  were  supposed  to  be 
still  on  the  land.  The  words  of  Lord  Coke  are,  "  Yet  may  the  lord 
justly  follow  and  distrain  the  cattle,  and  the  tenant  cannot  make 
rescous,  albeit  the  place  wherein  the  distress  is  taken  is  out  of  his 
fee,  for  now  in  the  judgynent  of  laio  the  distress  is  taken  icithin  liis 
fee,  and  so  shall  the  writ  of  rescous  suppose.  B,ut  if  the  lord 
coming  to  distrain  had  no  view  of  the  cattle  within  his  fee  though 
the  tenant  drive  them  off  purposely,  or  if  the  cattle  of  themselves 
after  the  view  go  out  of  the  fee,  or  if  the  tenant  after  the  view 
remove  them  for  any  other  cause  than  to  prevent  the  lord  of  his 
distress,  then  cannot  the  lord  distrain  them  out  of  his  fee."  And 
notwithstanding  the  statue  of  Marlbridge,  c.  15  (52  Hen.  3),  if  the 
lord  came  to  distrain,  and  saw  the  beasts  within  his  fee,  and  before 
he  could  distrain  them,  the  tenant  chased  them  into  the  highway,  the 
lord  might  distrain  them  there.     2d  Inst.  132. 


200  LAN'DLORD    AXD    T  E  N  A  X  T. 

r*i  '11  *Tliis  rule  of  the  common  law  seems  to  have 
given  the  hint  for  the  stat.  of  8  Anne,  c.  14,  s. 
2,  which  has  been  followed  np  by  stat.  11  Geo,  2,  c. 
19,  s.  1,  by  which,  if  the  tenant  frandulently  [or  clan- 
destinely] remove  his  goods  from  the  demised  premises, 
in  order  to  prevent  a  distress,  the  landlord  is,  T\ithin 
thirty  days,  allowed  to  follow  and  distrain  them 
wherever  they  may  be  found,  provided  they  have  not 
been  previously  sold  for  valuable  consideration  to  a 
hona  fide  purchaser.  («)      On  the  construction  of  this 

(a)  The  statutes  of  8  Anne,  eh.  14,  §  2,  and  11  George  2,  ch.  19,  § 
1,  have  been  substantially  re-enacted  in  Pennsylvania  by  the  Act  of 
21st  March,  1772,  §  5  and  6,  1  Sm.  370.  Thirty  days  is  the  time 
allowed  for  seiziug  the  goods.  Similar  enactments  are  found  in  other 
States.  Poor  v.  Peebles,  1  B.  Muuroe,  1  ;  Wilcoxen  v.  Bowles,  1 
La.  Ann.  R.  230.  The  Supreme  Court  of  Pennsylvania  held  in 
(irace  v.  Shively,  12  S.  &  R.  217,  that  the  statute  did  not  apply 
to  cases  where  the  goods  were  removed  before  the  rent  became 
due;  whereupon  the  legislature  on  the  25th  March,  1825,  passed  an 
additional  section  confined  in  its  operation  to  the  City  and  County  of 
Philadelphia,  by  which  the  landlord  is  enabled  even  before  his  rent 
is  due  to  distrain  for  it,  when  the  tenant  shall  fraudulently  convey 
away,  or  carry  otf  or  from  the  demised  premises  his  goods  and  chat- 
tels with  intent  to  defraud  the  kndlord  or  lessor  of  his  remedy  by 
distress ;  in  such  ease  the  landlord  or  lessor  may  consider  his  rent  as 
apportioned  up  to  the  time  of  such  conveying  away  or  carrying  off, 
and  distrain  within  the  space  of  thirty  days  next  ensuing  such  con- 
veying away  or  carrying  off,  wherever  the  goods  may  be  found, 
provided  that  the  landlord  first  make  oath  that  he  verily  believes 
the  goods  were  carried  away  for  the  purpose  of  defrauding ;  and  pro- 
vided that  no  goods  shall  be  taken  which  have  been  honCi  file  for  a 
valuable  consideration  sold  before  such  seizure  to  a  person  not  privy 
to  the  fraud. 

If  the  goods  are  removed  in  the  day  time,  the  fact  that  it  is  with- 
out the  landlord's  knowledge  does  not  make  the  removal  fraudulent. 
Grace  v.  Shively,  12  S.  &  R.  217.  And  the  right  to  follow  goods  is 
confined  to  the  tenant's  own  goods,  not  the  goods  of  a  strangerj 


DISTRESS.  201 

part  of  the  enactment,  another  part  of  whicli  I  shall 
have  occasion  to  mention  again,  yon  may  consult  Fnr- 
neanx  v.  Fotherby,  4  Campb,  136;  Watson  v.  Main,  3 
Esp.  15;  and  Parry  v.  Duncan,  7  Bing.  243,  (20  E.  C. 
L.  R.  115,).^*^  It  applies,  *you  must  remem-  |-*-|---| 
ber,  only  to  a  removal  of  the  tenant's  own 

^°  The  landlord  is  entitled  to  distrain  if  the  removal  is  fraudulent, 
even  though  it  is  not  clandestine.  Opperman  v.  Smith,  4  J).  &  R. 
33,  (16  E.  C  L.  R.  187,).  The  first  section  of  the  11  Geo.  2,  c  .19,  is 
substantially  the  same  as  the  second  section  of  the  8  Anne,  e.  14, 
except  tliat  the  earlier  of  these  statutes  allowed  only  five  days  after 
the  removal  for  seizing  the  goods,  and  the  later  allows  thirty.     By  s. 

though  they  may  have  been  liable  to  a  distress  while  on'  the  pre- 
mises. Adams  v.  La  Comb,  1  Dall.  440;  Frisby  v.  Thayer,  25 
Wend.  396.  And  the  landlord  will  be  guilty  of  a  trespass  if  he 
enter  the  house  of  a  stranger  to  search  for  and  distrain  goods 
fraudulently  removed,  if  he  finds  none.  Hobbs  v.  Geiss,  13  S.  & 
R.  417. 

8  Anne,  ch.  14,  §  2,  is  in  these  words :  And  be  it  further  enacted, 
that  in  case  any  lessee  for  life  or  lives,  term  of  years,  at  will,  or  other- 
wise, of  any  messuages,  lands,  or  tenements  upon  the  demise  whereof, 
any  rents  are  or  shall  be  reserved  or  made  payable,  shall  from  and 
after  the  first  day  of  May,  fraudulently  or  clandestinely  convey  or 
carry  off  from  such  demised  premises  his  goods  or  chattels  with  intent 
to  prevent  the  landlord  or  lessor  from  distraining  the  same  for  arrears 
of  such  rent  so  reserved  as  aforesaid,  it  shall  and  may  be  lawful  to 
and  for  such  lessor  or  landlord,  or  any  person  or  persons  by  him  for 
that  purpose  lawfully  empowered,  within  the  space  of  five  days  nest 
ensuing  such  conveying  away  or  carrying  off  of  such  goods  or  chattels 
as  aforesaid,  to  take  and  seize  such  goods  and  chattels  wherever  the 
same  shall  be  found  as  a  distress  for  the  said  arrears  of  such  rent ; 
and  the  same  to  sell  or  otherwise  dispose  of  in  such  manner  as  if  the 
said  goods  and  chattels  had  actually  been  distrained  by  such  lessor  or 
landlord  in  and  upon  such  demised  premises  for  such  arrears  of  rent  j 
any  law,  custom,  or  usage  to  the  contrary  in  any  wise  notwith- 
standinnj. 


202  LANDLORD    AND    TENANT. 

9 

goods,  not  to  those  of  a  stranger,  wliich  happened  to 
be  on  the  demised  premises ;  for,  thongh  the  landlord 

4  of  the  11  Geo.  2,  c.  19,  a  remedy  is  given  to  the  landlord  by  com- 
plaint to  two  justices  where  the  goods  do  not  exceed  the  value  of 
50?.  ;  but  he  is  not  limited  to  this  remedy.  Bromley  v.  Holden,  I 
Moo.  &  M.  175,  (22  E  C.  L.  R.  500,).  In  Rand  v.  -Vaughan,  1 
Bing.  N.  C.  767,  (27  E.  C  L.  E.  «51,)  it  was  held  that  the  statute 
did  not  apply  to  cases  in  which  the  tenant  fraudulently  removed  bis 
goods  before  the  rent  became  due.  In  this  case  the  goods  were  in 
fact  removed  hefore  the  quarter-day,  but  the  Court  appeared  to  be  of 
opinion  that  it  was  ncri  ssnry  that  the  rent  should  be  actually  in 
arrear,  in  which  case  goo  Is  leinoved  on  the  quarter-day  would  not 
be  distrainable.  In  a  late  case,  however,  the  Court  of  Queen's  Bench 
has  held  that  goods  fraudulently  removed  on  the  morning  of  the  day 
upon  which  the  rent  becomes  due  may  be  followed  and  seized  under 
the  statute,  the  rent  being  under  these  circumstances  due  and 
payable  (see  ante,  p.  126,  note  ^,)  though  not  in  arrear  at  the  time 
of  the  removal.  From  this  judgment  Mr.  Justice  Crompton  dis- 
sented, holding  that,  by  the  previous  cases,  it  has  been  decided  that 
the  rent  must  be  in  arrear  at  the  time  of  the  removal.  See  Dibble  v. 
Bowater,  2  E.  &  B.  564,  (75  E.  C.  L.  R.  564,).  It  is  not  necessary, 
in  a  plea  justifying  the  seizure  of  goods  under  this  statute,  to  allege 
that  the  goods  have  not  been  sold  hond  fide  to  persons  not  privy  to 
the  fraud.  This  fact  must  be  replied.  Nor  is  it  necessary,  in  order 
to  the  exercise  of  the  right  given  by  the  act,  that  the  party  upon 
whose  land  the  goods  are  seized  should  himself  be  privy  to  the  fraud. 
Williams  v.  Roberts,  7  Exch.  618.  In  trespass,  a  special,  plea  is 
necessary  where  the  seizure  of  goods  is  to  be  justified  under  this  act. 
2  Wms.  Saund.  284  a.  See  as  to  the  form  of  it  the  case  last  cited, 
and  Fletcher  r.  Marillier,  9  A  &  E.  457,  (36  E.  C  L.  R.  170,). 
By  s.  7  of  the  11  Geo.  2,  c.  19,  when  goods  are  fraudulently  removed 
and  placed  in  any  house  or  place  locked  up  or  otherwise  secured,  the 
landlord  or  his  agent  may,  with  the  assistance  of  a  peace  oflBlcer  (and 
in  the  case  of  a  dwelling-house,  after  oath  being  made  before  a  magis- 
trate of  a  reasonable  ground  to  suspect  that  the  goods  are  in  it), 
break  open  the  house,  etc.,  in  the  daytime,  and  distrain  the  goods  as 
if  they  had  been  in  any  open  place.  See  as  to  this  section,  post, 
p  170. 


DISTRESS.  203 

might  have  taken  such,  if  not  privileged,  yet  it  would 
be  hard  indeed  to  debar  the  owner  from  rescuing  them 
from  jeopardy.  *Thorton  v.  Adams,  5  M.  &  ^^^^.^^ 
8.  38;  Postman  v.  Harrell,  6  C.  &  P.  225,  (25  •-  '' 
E.  C.  L.  II.  406,). 

By  the  8th  section  of  the  same  stat.  11  Geo.  2,  c. 
19,  the  landlord  may  distrain  cattle  [of  the  tenant's] 
depasturing  upon  any  common  or  way  appertaining  to 
the  premises  demised,  a  privilege  too  reasonable  to 
require  comment.^^(a) 

Having  thus  proceeded  as  far  as  the  time  will  per- 
mit in  the  consideration  of  the  main  points  relative  to 
a  distress  for  rent,  I  must  postpone  till  the  next  Lec- 
ture those  with  regard  to  the  time  and  mode  of  making 
it,  the  treatment  of  the  distress  when  taken,  and  the 
tenant'' s  remedies  in  the  case  of  illegal  proceedings. 

^^  The  words  of  this  section  are,  that  the  landlords  or  their  agents 
may  "  take  and  seize,  as  a  distress  for  arrears  of  rent,  any  cattle  or 
stock  of  their  respective  tenant  or  tenants,  feeding  or  depasturing 
upon  any  common  appendant  or  appurtenant,  or  any  way  belonging 
to  all  or  any  part  of  the  premises  demised  or  holden." 


(a)  In  Pennsylvania,  by  7  sec.  Act  21st  March,  1772, 1  Smith,  371, 
the  landlord  is  authorised  to  seize  as  a  distress  for  rent,  any  cattle  or 
stock  of  the  tenant  feeding  or  depasturing  upon  all  or  any  part  of  the 
premises  demised  or  holdeu. 


204 


LANDLORD    AND     TENANT. 


[*157] 


*LECTUEE    YI. 


Points  relatixg  to  Coxtixu- 

AXCE       OF      TeXAXCY       (  COll- 

tinued) 157 

Remedy    by    Distress     ( cou- 

tinued) 158 

When  the  Landlord  may  dis- 
train   158 

Forehand  Rent 158 

Time  of  Day  at  which  Dis- 
tress may  be  made 159 

After  Expiration  of  Tenancy  IGO 
Effect  of  the  8  Anne,  c.  14, 

S.6 160 

How  the  Landlord   may  dis- 
train   1 G2 

Warrant 1G4 

Outer  Door  must  be  open. .  1G5 

Seizure 166 

Inventory 166 

Notice 166 

Seizure    of    Goods    fraudu- 
lently removed 168 

What  the  Landlord  must  do 

with  the  Distress 171 


Power  of  Landlord  at  Com- 
mon Law 171 

Statutory  Liability  to  pro- 
vide Food  for  Cattle  dis- 
trained    173 

Statutory  Alterations  of 
Power  of  Landlord 174 

Right  to  impound  on  Pre- 
mises    175 

Impounding  of  growing  Crops  177 

Appraisement  and  Sale 178 

Remedies   of    Tenant    for    a 

WRONGFUL  Distress 180 

Where  Distress  is  irregu- 
lar    180 

Where  no  Right  to  dis- 
train    182 

Where  Distress  is  by  a 
Stranger 182 

Where  Distress  is  by  Land- 
lord    182 

Proceedings  in  Replevin ....   183 

Bond 185 


We  were  considering-  at  the  conclusion  of  the  last 
Lecture  the  landlord's  remedies  in  case  of  the  non-pay- 
ment of  his  rent,  and  had  arrived  at  that  by  way  of 
Distress.  Of  the  six  points  into  which  I  distributed 
that  part  of  the  subject,  the  time  had  allowed  me  to 
dispose  of  two  only.     I  had  *considered  what 


[*158] 


the  things  are  which  the  landlord  is  entitled 


to  distrain,  and  had  stated  the  general  rule  that  all 
chattels  found  on  the  demised  premises  are  distrain- 
able,  the  exceptions  from  this  rule  and  the  additions  to 


DISTRESS.  205 

it.  I  had  stated  also  wJiere  he  is  permitted  to  distrain, 
generally  speaking  on  the  demised  premises,  and  I  had 
mentioned  the  cases  in  which  that  rule  also  is  enlarged, 
and,  on  what  particular  occasions  he  is  permitted  to 
exercise  his  right  of  distress  elsewhere — the  questions 
which  remain  are :  AVhejst  the  distress  is  to  he  made. 
How  it  is  to  he  made.  What  is  to  he  done  ivith  it.  And 
lastly.  What  are  the  tenants  remedies  in  case  of  illegal  or 
irregidar  proceedirigs. 

Now,  with  regard  to  the  question,  When  the  distress 
is  to  he  made.  It  must  of  course,  not  he  made  until 
the  rent  has  become  due,  and,  as  I  have  stated  in  a 
former  Lecture,  that  (except  for  one  purpose,  which  I 
then  specified,  that,  namely,  of  making  a  demand  to 
create,  or  a  tender  to  prevent  forfeiture)  rent  does  not 
become  due  till  the  last  minute  of  the  day  on  which  it 
is  by  the  lease  made  payable,^  it  follows,  of  course,  that 
there  can  be  no  distress  until  the  next  day.-(a)  It 
sometimes  indeed  happens  that  by  the  special  agree- 
ment of  the  parties  to  the  lease,  the  rent  is  made  pay- 
able hefoi'e  the  time  for  which  it  is  to  be  paid  has 
elapsed,  and,  as  there  is  no  objection  *in  point  ^^.  ^qn 
of  law  to  such  an  agreement,  the  rent  would, 
in  such  case,  be  distrainable  for  as  soon  as  the  time  so 
specially  fixed  had  elapsed,  but  this  you  will  at  once 
perceive,  is  not  a  contravention  of  the  general  prin- 
ciple, but  a  carrying  out  of  it,  for  the  rent  is  not,  in 
such  cases,  distrained  for  he/ore  the  time  of  payment  has 
elapsed,  although,  in  consequence  of  special  terms  in- 
serted in  the  lease,  the  time  of  payment  is  accelerated, 

^  uinte,  p.  125. 

2  See  Co.  Litt.  47  b,  note  6;  Duppa  v.  IMayo,  1  Wms.  Saund.  282  ; 
and  the  notes  to  Poole  /;.  Longueville,  2  ib.  28 i  b. 


{(()   McKinncy  v.  Reeder,  6  Watts.  41. 


20G  LANDLORD    AND    TENANT. 

I 

and  made  to  occur  earlier  than  in  ordinary  cases.^ 
Sometimes  too  it  happens,  especially  as  I  have  heard 
in  the  Eastern  Counties  of  England,  that,  by  a  local 
custom,  the  rent  is  payable  as  soon  as  the  half  year 
begins,  which  custom  would,  in  the  absence  of  terms 
incompatible  with  it,  be  incorporated  into  the  lease, 
and  give  the  landlord  a  right  to  distrain  immediately. 
You  will  find  this  in  Buckley  v.  Taylor,  2  T.  E,.  600.* 
With  regard  to  the  tiine  of  making  the  distress,  it  is 
further  to  be  observed,  that  it  must  be  between  sunrise 
and  sunset.  The  law  relative  to  distresses,  except  such 
part  of  it  as  owes  its  origin  to  statute,  is  all  very 
ancient ;  and  the  reason  given  for  this  rule  by  the  old 
books  certainly  savors  of  antiquity.  It  is,  that  the 
tenant  may  be  able  to  see  the  landlord  or  his  bailiff 
coming,  so  as  to  prevent  the  necessity  of  the  distress 
r*irni  ^^  ^  tender.^  A  better  *reason  might  (one 
would  suppose)  be  found  in  the  inconvenience 
and  disturbance  to  families  which  would  arise  from 
allowing  a  proceeding  of  some  violence  to  take  place 
during  the  hours  devoted  to  repose,  an  inconvenience 
from  which  I  think  the  law  has  done  wisely  in  exempt- 
ing them.  It  must  further  be  observed,  with  regard 
to  the  time  of  making  the  distress,  that,  at  common 
law,  it  could  not  have  been  made  after  the  expiration 
of  the  lease  (1  Inst.  47  b),  but  by  stat.  8  Anne,  c.  14, 
s.  6,  it  has  been  been  provided  that  a  landlord  may 
distrain  witldyi  six  months  after  the  termination  of  the 
lease^  provided  his  own  title  continues,  and  the  same 

^  See  Lee  v.  Smidi,  9  Exch.  662.  It  has  been  held,  in  Ireland, 
that  the  general  form  of  avowry  given  by  the  11  Geo.  2,  c.  19,  s.  22, 
may  be  used  although  the  rent  is  payable  in  advance.  Charters  v. 
Sherrock,  Alcock  &  Napier,  17,  506. 

■•  See  Bac.  Ab.  Distress  (C). 

^  Gilbert  on  Dist.  50 ;  Co.  Litt.  142  a;  7  Rep.  7  aj  and  Aldenburgh 
V.  Peaple,  6  C.  &  F.  212,  (25  E.  C.  L.  R.  399,). 


DISTRESS.  207 

tenant  still  continues  in  possession.*^  Upon  the  con- 
struction of  this  statute,  it  has  been  held  that,  if  a 
landlord  allow  the  tenant  to  retain  part  only  of  the 
property  demised,  after  the  expiration  of  the  lease,  he 
may  distrain  on  that  part,  Nuttall  v.  Staunton,  4  B.  & 
C.  51,  (10  E.  C.  L.  R.  477,) ;  and  it  was  held  in  Braith- 
waite  V.  Cooksey,  1  H.  Bl.  465,  that  where  the  original 
tenant  died,  and  his  representative  entered,  the  land- 
lord might  *distrain  within  six  months  upon  r#ipi-i 
that  representative. '(a) 

^  It  is  provided  by  ss.  6  &  7  of  the  8  Anne,  c.  14,  that  it  shall 
<<  be  lawful  for  any  person  or  persons  having  any  rent  in  arrear  or 
due  upon  any  lease  for  life  or  lives,  or  for  years,  or  at  will,  ended  or 
determined,  to  distrain  for  such  arrears  after  the  determination  of 
the  said  respective  leases,  in  the  same  manner  as  they  might  have 
done  if  such  lease  or  leases  had  not  been  ended  or  determined  ;  pro- 
vided that  such  distress  be  made  within  the  space  of  six  calendar 
months  after  the  determination  of  such  lease,  and  during  the  con- 
tinuance of  such  landlords'  title  or  interest,  and  during  the  posses- 
sion of  the  tenant  from  whom  such  arrears  became  due. 

^  Where  the  possession  is  continued  beyond  the  expiration  of  the 
term  under  a  custom  of  the  country,  as,  for  instance,  where  the 
tenant  has  a  customary  right  to  leave  his  way-going  crop  in  the  barns 
for  a  certain  time  after  the  lease  has  expired,  the  landlord  may  dis- 
train, although  six  months  have  elapsed  since  the  expiration  of  the 
lease.  Beavan  r.  Delahay,  1  H.  Bl.  5 ;  Griffiths  v.  Puleston,  13 
M.  &  W.  358.*  Where  a  tenant  remained  on  the  premises  a  few 
days  after  the  expiration  of  the  term,  and  after  the  new  tenant  had 
entered,  and  then  went  away  leaving  some  cattle  on  the  premises,  it 
was  held  that  there  was  no  continuance   of  the  possession  after  the 

(f?)  The  common  law  upon  the  subject  of  distresses  for  rent  has 
been  adopted  very  generally  in  the  United  States,  and  the  legislatures 
of  the  different  States  have,  with  more  or  less  conformity,  adopted 
^he  amendments  which  have  been  from  time  to  time  engrafted  on  the 
law  by  the  Parliament  of  Great  Britain.  In  Pennsylvania  and  New 
York,  for  instance,  the  provisions  of  8  Anne  and  11  George  2, 
have  been  re-cnactcd  with  some  variations.     The  Pennsylvania  Act 


208  LANDLORD    AND    TENANT. 

The  iitili^  of  this  statute  of  Queen  Anne  is  obvious 
when  it  is  considered  that,  before  it  was  passed,  if  rent 
had  been  reserved  payable,  say  at  Lady-day  and  at 

tenant  had  hhnself  left.  Taylorson  v.  Peters,  7  A  &  E.  110,  (34  E. 
E.  C.  L.  R.  45,).  It  has  been  held  at  Nisi  Prius  that  this  statute 
does  not  apply  where  a  tenancy  is  put  an  end  to  by  the  tenant's 
wrongful  disclaimer,  but  only  where  it  is  determined  by  lapse  of  time, 
or  perhaps  by  notice  to  quit.  Doe  d  David  v.  Williams,  7  C.  &  P. 
322,  (32  E.  C.  L  R.  635,).  An  avowry  for  rent  arrear,  which  is 
framed  at  common  law  and  not  under  this  statute,  must  allege  that 
the  tenancy  was  continuing  at  the  time  when  the  distress  was  made. 
Williams  v.  Stiven,  9  Q.  B,  14,  (58  E.  C  L.  R.  14,). 

of  21st  March,  1772,  §  14,  follows  the  provisions  of  the  statute  of 
Anne  as  to  the  right  of  distress  after  the  expiration  of  the  lease, 
provided  such  distress  be  made  during  the  lessor's  title  or  interest ; 
but  it  omits  the  provision  that  the  distress  be  made  within  six  months 
after  the  determination  of  the  lease  ;  and  it  omits  the  last  words 
during  the  possession  of  the  tenant  from  whom  such  arrears  are  due. 
With  respect  to  these  last  words,  Judge  Huston  says  in  Clifford  v. 
Beems,  "  perhaps  the  omission  of  them  may  not  be  found  to  affect 
the  meaning  of  the  provision ;"  referring  probably  to  the  fact,  that 
unless  where  statuary  exceptions  existed,  the  distress  could  only  be 
made  upon  the  premises.  Clifford  v.  Beems,  3  Watts,  246 ;  Bukup  v. 
Valentine,  19  Wend.  554 ;  Rogers  v.  Brown,  1  Spears,  283  ;  Lougee  v. 
Colton,  2  B.  Munroe,  115.  If  the  goods  are  sold  in  good  faith  to  an 
innocent  purchaser,  although  such  purchaser  be  the  succeeding  tenant, 
and  the  goods  yet  remain  upon  the  premises,  they  cannot  be  dis- 
trained. Clifford  V.  Beems,  3  Watts,  246.  See  Bell  v.  Potter,  6  Hill, 
497 ;  Weber  v.  Shearman,  3  Hill,  547,  and  6  Hill,  20.  In  North 
Carolina  and  Missouri  the  right  of  distress  for  rent  is  not  known. 
Dalgleish  v.  Grandy,  C.  &  N.  22 ;  Crocker  v.  Mann,  3  Mis.  472. 

As  a  general  rule  to  authorize  a  distress  for  rent  in  the  United  States 
there  must  be  a  certain  rent,  or  a  rent  which  can  be  reduced  to  a  cer- 
tainty, reserved.  Wells  v.  Hornish,  3  Penn.  R.  30 ;  Steel  ?;.  Thomson, 
ib.  34 ;  Scott  v.  Fuller,  ib.  55 ;  Jacks  v.  Smith,  1  Bay,  315;  Robert^ 
V.  Tennell,  4  J.  J.  Marshall,  160;  Benoist  v.  Sollee,  1  Brevard,  251 ; 
Reeves  v.  McKonzie,  1  Bailey,  497 ;  Valentine  v.  Jackson,  9  Wend. 
302,  where  it  was  held  that  if  a  rent  certain  be  reserved,  subject  to  a 


DISTRESS.  '  209 

Michaelmas,  the  landlord  would  have  lost  his  remedy 
by  distress  for  his  last  half-year's  rent;  for  he  conld 
not  have  distrained  for  it  before  it  was  due,  and  it 
would  not  have  become  due  till  the  last  moment  of 
Michaelmas-day,  and  then  the  term  would  have  been 
at  an  end.^ 

^  Therefore,  as  Lord  Coke  says,  it  was  usual  in  his  day  to  reserve 
the  last  quarter's  rent  in  advance.  Co.  Litt.  47  b.  Before  leaving 
this  subject  it  may  be  useful  to  call  attention  to  some  of  the  cases, 
which  show  lolien  a  landlord  may  distrain  in  the  sense  of — under 
what  circumstances  he  may  exercise  this  right.  It  is  a  general  rule, 
that  no  distress  can  be  made  for  rent,  unless  there  is  an  actual  demise 
at  a  fixed  rent.     See  Hegan  v.  Johnson,  2   Taunt.  148 ;  Dunk  v. 

condition  to  be  performed  by  the  tenant,  the  landlord  may  distrain 
notwithstanding  the  condition,  unless  the  tenant  shows  a  performance. 

When  the  rent  is  reserved  in  iron  or  grain,  or  any  other  commodity, 
it  may  be  distrained  for,  provided  it  is  capable  of  being  reduced  to  a 
certainty.  Thus  where  the  rent  of  a  mill  was  expressed  to  be  "  one- 
third  of  the  toll  which  the  mill  grinds."  The  Supreme  Court  of 
Pennsylvania  held  the  rent  might  be  distrained  for.  Judge  Rogers, 
in  pronouncing  the  opinion  of  the  Court,  said,  <'  If  the  tenant  keeps 
an  account  of  the  toll,  which  it  is  his  duty  to  do,  the  rent  may  be 
reduced  to  the  utmost  certainty.  Nor  can  we  perceive  the  danger 
which  may  arise  to  the  tenant,  for  his  rights  are  abundantly  pro- 
tected. By  an  offer  to  comply  with  his  contract,  with  which  he  is 
best  acquainted,  he  can  defeat  the  landlord.  And  for  an  excessive 
distress  the  law,  as  in  other  cases,  has  provided  him  an  ample 
remedy."  Fry  v.  Jones,  2  Rawle,  12 ;  Jones  v.  Gundrim,  3  W.  & 
S.  531;  Rinehart  v.  Olwine,  5  W.  &  S.  163;  Smith  v.  Colson,  10 
Johns.  91  .  Contra  Clark  v.  Fraley,  3  Blackf.  264  ;  Bowzer  v.  Scott, 
8  Blackf.  86. 

New  York,  in  1846,  abolished  the  distress  for  rent,  and  it  has 
been  held  that  distress  for  rent  is  not  an  essential  part  of  the  con- 
tract between  landlord  and  tenant;  that  it  was  merely  a  remedy 
which  the  legislature  might  alter  or  abolish  without  such  act  being 
liable  to  any  constitutional  objection.     Guild  v.  Rogers,  8  Barb.  Sup. 

Court,  502. 

14 


210  LANDLORD    AND    TENANT. 

[*162] 


*Next,  with  regard  to  the  mode  of  making  the 
distress.     The  landlord  may  either  distrain  in 


Hunter,  5  B.  &  A.  322,  (7  E.  C.  L.  R.  115,) ;  Knight  v.  Benett,  3 
Bing.  361,  (11  E.  C.  L.  R.  181,);  Regnart  v.  Porter,  7  Bing.  451, 
(20  E.  C.  L.  R.  204,) ;  Risely  v.  Ryle,  11  M.  &  W.  16  ;*  and  Wat- 
son  V.  Waud,  8  Exch.  335.  But  a  landlord  may  distrain  on  a 
tenancy  at  will  if  a  yearly  rent  is  reserved,  Litt.  s.  72  ;  and  a  rent 
is  sufficiently  certain  which  may  be  reduced  to  certainty  by  computa- 
tion. See  Daniel  v.  Gracie,  6  Q.  B.  145,  (51  E.  C.  L.  R.  145,) ; 
and  Doe  d.  Edney  v.  Benham,  7  Q.  B.  976,  (53  E.  C  L.  R.  976,) ; 
cited  ante^  pp.  88-95,  notes.  The  right  to  distrain  may  also  exist 
by  express  agreement  between  the  parties,  although  the  subject- 
matter  in  respect  of  which  this  power  is  reserved  may  not  be  strictly 
a  rent;  therefore,  where  by  a  contract  between  a  landlord  and  a 
tenant,  it  was  stipulated  that  a  penalty  should  be  paid  for  every  yard 
of  hay  which  was  not  spent  upon  the  land,  and  that  it  should  be 
recoverable  by  distress  as  for  rent  in  arrear,  it  was  held  that  it  might 
be  so  recovered  ;  but  that  as  it  was  not  a  rent,  the  landlord  could  not 
avow  for  it  in  the  general  form  which  is  given  by  the  11  Geo.  2,  c.  19. 
Pollitt  V.  Forrest,  11  Q.  B.  949,  (63  E.  C.  L.  R.  949,).  Another 
general  rule  is,  that  a  landlord  who  has  no  reversion  cannot  distrain ; 
therefore  if  a  lessee  for  years  assigns  his  term,  reserving  a  rent,  he 
cannot  distrain  at  common  law,  nor  under  the  4  Gen.  2,  c.  28,  s.  5, 
for  a  rent-seek  cannot,  it  is  said,  issue  out  of  a  term  of  years.     See 

Newcomb   ?;.   Harvey,  Carth.    161; v.  Cooper,  2  Wils.  375; 

Smith  V.  Mapleback,  1  T.  R.  441 ;  Preece  v.  Corrie,  5  Bing,  24,  (15 
E.  C.  L.  R.  453,)  ;  and  Pollock  v.  Stacy,  9  Q.  B.  1033,  (58  E.  C. 
L.  R.  1033,).  It  does  not,  however,  appear  to  be  quite  clear  that  a 
rent-seek  cannot  issue  out  of  a  term  of  years,  for  the  passage  in  the 

Year  Book  of  45  Edw.  3,  which  is  cited  incorrectly  in v.  Cooper, 

and  correctly  in  Bro.  Ab.  Dette,  pi.  39,  as  the  authority  for  this 
position,  has  a  qusere  added  to  it ;  and  see  also  Co.  Litt.  147  b.  A 
tenant  from  year  to  year,  who  underlets  from  year  to  year,  has  how- 
ever a  sufficient  reversion  to  distrain.  Curtis  v.  Wheeler,  1  Moo.  & 
M.  493,  (22  E.  C.  L.  R.  572,).  With  respect  to  the  limitation  in 
point  of  time  on  the  right  to  distrain,  only  six  years'  arrears  of 
rent  are  recoverable  by  distress,  3  &  4  Wm.  4,  c.  27,  s.  42.  But 
the  power  to  distrain  for  this  limited  amount  does  not  appear  to  be 


DISTRESS.  211 

*person,  or,  as   is   now  the   practice,  by  an   r#ipq-i 
authorized  agent  or  bailiff.     The  authority  is 

lost  hy  reason  of  the  mere  non-payment  of  the  rent  for  any  time  short 
of  the  period  after  which  the  right  to  recover  the  land  itself  is  gone. 
Where  the  right  to  the  land  is  at  an  end,  as  there  is  no  longer  any 
tenancy  or  any  reversion,  the  right  of  distress  ceases  also.  Where 
the  land  continues  to  be  held  under  a  lease  in  writing,  and  the  rent 
is  simply  withheld,  the  non-payment  of  it  for  any  number  of  years 
will  not  afifect  the  interest  of  the  landlord  or  his  representatives  in 
the  land  itself.  Doe  d.  Davy  v.  Oxenham,  7  M.  &  W.  131;*  and 
Sugden's  Essay  on  the  Real  Property  Statutes,  c.  I.  s.  III.  But 
where  there  is  no  lease  in  writing,  the  right  to  recover  the  land  is  lost 
so  soon  as  twenty  years  have  elapsed  from  the  time  at  which  the 
right  of  action  in  this  respect  has  accrued  to  the  landlord,  or  to  any 
person  through  whom  he  claims ;  and  this  time,  when  the  receipt  of 
rent  has  been  discontinued,  is  the  last  time  at  which  the  rent  was 
received.  See  the  3  &  4  Wm.  4,  c.  27,  ss.  2,  3,  &  8.  By  s.  2  of 
this  act,  it  is  provided  that  no  person  shall  make  an  entry  or  distress, 
or  bring  an  action  to  recover  any  land  or  rent,  but  within  twenty 
years  next  after  the  right  of  entry,  distress  or  action  has  first  accrued. 
But  this  section  has  been  held  not  to  apply  to  rents  reserved  on  a 
demise,  but  to  be  confined  to  rents  existing  as  an  inheritance  distinct 
from  the  land,  and  for  which,  before  this  act,  the  party  entitled  to 
them  might  have  had  an  assize.  See  Paget  v.  Foley,  2  Bing.  N.  C. 
679,  (29  E.  C.  L.  R.  714,);  Grant  v.  Ellis,  9  M.  &  W.  113  ;*  Doe 
d.  Angell  V.  Angell,  9  Q.  B.  328,  (58  E.  C.  L.  Pt.  328,) ;  The  Dean 
of  Ely  V.  Cash,  15  M.  &  W.  617  ;*  and  Owen  v.  De  Beauvoir,  16 
M.  &  W.  547  ;*  S.  C.  5  Exch.  166.  The  only  way,  therefore,  in 
which  it  can  affect  the  right  of  making  a  distress,  is  by  its  operation 
in  destroying  the  right  to  recover  the  land  itself  after  the  period  of 
limitation  which  it  mentions.  By  an  act  passed  in  the  same  session, 
the  3  &  4  Wm.  4,  c.  42,  s.  3,  a  limitation  of  twenty  years  is  imposed 
on  actions  of  debt  for  rent  upon  an  indenture  of  demise,  but  this 
statute  does  not  mention  distresses.  See  as  to  the  construction  of 
these  acts,  the  cases  last  cited,  the  notes  to  Nepean  v.  Doe,  2  Smith's 
L.  C.  396  ;  and  Humfrcy  v.  Gery,  7  C.  B.  567,  (62  E.  C.  L.  R.  567,). 
There  is  another  general  rule  limiting  the  right  of  a  landlord  to  dis- 
train :  namely,  that  after  a  distress  for  rent  has  once  been  made,  no 


212  LANDLORD  AND   TENANT. 

[*164]   usually  given  by  *an  instrument  called  a  loar- 

second  distress  will  be  valid  for  the  same  rent  where  enough  might 
have  been  taken  under  the  first  distress,  or  where  if  enough  has  been 
taken  under  it,  the  distress  has  been  afterwards  voluntarily  abandoned. 
See  Dawson  v.  Cropp,  1  C.  B.  961,  (50  E.  C.  L.  R.  961,).  This 
rule  is  illustrated,  and  the  limitations  on  it  are  explained  in  Bagge, 
app.,  V.  Mawby,  resp.,  8  Exch.  641,  lu  this  case  a  landlord  dis- 
trained upon  the  goods  of  a  tenant,  who  had  previously  committed  an 
act  of  bankruptcy.  Before  any  sale  took  place  he  withdrew  the 
distress  without  obtaining  payment  of  the  rent,  owing  to  a  notice 
from  one  of  the  creditors  of  the  tenant  that  he  was  taking  proceedings 
in  bankruptcy  against  him  j  but  at  that  time  no  assignee  had  been 
appointed.  The  landlord  afterwards  distrained  a  second  time  for  the 
same  rent.  The  Court  held  that  as  he  had  abandoned  the  first  dis- 
tress on  account  of  a  mere  threat,  which  he  ought  to  have  disregarded, 
and  without  any  sufficient  excuse,  the  second  distress  was  illegal. 
<<  There  is  nothing  more  cleaP',"  said  Baron  Parke,  in  delivering 
judgment,  "  than  this,  that  a  person  cannot  distrain  twice  for  the 
same  rent,  for  if  he  has  had  an  opportunity  of  levying  the  amount  of 
the  first  distress,  it  is  vexatious  in  him  to  levy  the  second,  unless  there 
be  some  legal  ground  for  his  adopting  such  a  course.  ...  If 
there  has  been  some  mistake  as  to  the  value  of  the  goods,  and  the 
landlord  fairly  supposed  the  distress  to  be  of  the  proper  value  at  the 
time  of  levying  the  first  distress,  and  he  afterwards  finds  it  to  be 
insufficient,  he  may  then  distrain  for  the  remainder;  or,  if  the  tenant 
has  done  anything  equivalent  to  saying,  '  Forbear  to  distrain  now, 
and  postpone  your  distress  to  some  other  time ;'  in  such  cases,  the 
landlord  may  distrain  a  second  time.  But  if  there  is  a  fair  oppor- 
tunity, and  there  is  no  lawful  or  legal  cause  ichy  he  should  not  work 
out  the  payment  of  the  rent  hy  reason  of  the  first  distress,  his  duty  is 
to  work  it  out  by  the  first  distress,  and  he  cannot  distrain  again.  .  . 
The  principle  upon  which,  as  a  general  rule,  a  landlord  cannot  dis- 
train twice  is,  that  he  must  not  vex  his  tenant  by  the  exercise,  upon 
two  occasions,  of  this  summary  remedy."  Finally,  it  must  be 
observed  that  the  discharge  of  the  tenant  under  the  bankrupt  acts 
does  not  take  away  the  right  to  distrain.  Briggs  v.  Sowry,  8  M.  & 
W.  729  ;*  Newton  v.  Scott,  9  M.  &  W.  434  f  S.  C  10  M.  &  W. 
471.*   Nor  is  it  any  objection  to  a  distress  that  after  the  rent  became 


DISTRESS.  213 

rant  of  distress.^  {a)     But  whether  the  landlord  or  the 
bailiff  distrain,  *care  must  be  taken  that  the   r#ipr-i 
outer   door   be  open  at   the  time  of  making 
the  distress,  if  it  be  made  in  a  dwelling-house,  for  this 
is  one  of  the  cases  in  which  the  maxims  holds,  that 

due,  the  tenant  petitioned  the  Insolvent  Court,  inserted  the  rent  in 
his  schedule,  and  was  opposed  in  respect  of  it  by  the  landlord,  but 
obtained  his  discharge.  Phillips  v.  Shervill,  6  Q.  B.  944,  (51  E.  C. 
L.  R.  944,). 

^  The  warrant  of  distress  does  not  require  a  stamp.  Pyle  v.  Par- 
tridge, 16  M.  &  W,  20.*  It  should  be  signed  by  the  landlord,  but 
the  signature  of  one  joint  tenant  is  sufficient  if  the  others  do  not 
dissent.  Robinson  v.  Hoffman,  4  Ring.  562,  (13  E.  C.  L.  R.  637,). 
A  warrant  which  directs  the  bailiff  to  distrain  one  sum  composed  of 
several  rates,  is  wholly  bad,  if  one  of  the  rates  is  illegal.  Blilward  v. 
Caffin,  2  W.  Bl.  1330;  Sibbald  v.  Roderick,  11  A.  &  E.  38,  (39  E. 
C.  L.  R.  21,).  But  it  is  otherwise,  if  the  amount  claimed  in  respect 
of  both  demands  is  mentioned,  and  the  legal  part  can  be  distinguished 
from  the  illegal.  Skingley  v.  Surridge,  11  M.  &  W.  503  ;*  see  also 
Clark  V.  Woods,  2  Exch.  394.  A  subsequent  ratification  by  the 
landlord  of  the  bailiff's  authority  is  as  effectual  as  a  previous  com- 
mand. Bro.  Ab.  Traverse  per  sans  ceo.  pi.  3.  Where  a  landlord 
gives  a  warrant  to  distrain,  he  impliedly  authorizes  the  bailiff  to 
receive  the  rent  if  tendered.  Hatch  v.  Hale,  15  Q.  B.  10,  (69  E.  C 
L.  R.  10,).  A  distress  may  be  made  for  one  rent,  and  the  landlord 
may  avow  for  another.  See  Fitz.  Ab.  Acotcrie,  pi.  232;  the  judg- 
ment of  Lord  Kenyon  in  Crowther  v.  Ramsbottom,  7  R.  657,  and 
the  judgment  of  Baron  (then  Mr.  Justice)  Parke  in  Lucas  v.  Nockells, 
10  Biag.  172,  (25  E.  C.  L.  R.  87,).  And  if  a  person  having  autho- 
rity to  distrain  for  rent  due  to  another,  says,  at  the  time,  that  he 
distrains  for  rent  due  to  himself,  he  may,  nevertheless,  justify  as  the 
bailiff  of  the  person  to  whom  the  rent  is  really  due.  Trent  v.  Hunt, 
9  Exch.  14. 

(a)  In  Pennsylvania  the  warrant  need  not  be  in  writing.  Jones 
V.  Gundrim,  3  W.  &  S.  531 ;  Fremciscus  v.  Reigart,  4  Watts.  98  ; 
aliter  in  Georgia  and  formerly  in  New  York.  Bigelow  v.  Judson,  19 
Wend.  229. 


214  LANDLORD    AND    TENANT. 

every  man's  house  is  ids  castle  ;  but,  if  the  outer  door 
be  open,  the  inner  doors  may  afterwards  be  broken 
open,  as  in  case  of  an  execution.  See  Bro^vning  v. 
Dann,  Bidl,  N.  P.  81.^*^  (a)  There  is  a  curious  case  in 
4  Taunt.  562,  Gould  v.  Brads tock,  in  Avhich  the  tenant 
occupied  a  paper  mill,  over  which  was  a  room  in  w^hich 
the  landlord  resided.  It  happened  that  the  wheel  of 
the  mill  rose  higher  than  the  level  of  the  floor  of  the 
upper  apartment,  and,  in  order  to  hide  it  from  view, 
the  landlord  had  placed  boards  over  it,  which  were  no 
part  of  the  ceiling  of  the  mill,  but  put  entirely  for  his 
own  convenience.  Having  occasion  to  distrain,  his 
v*^rc~\  bailiff  took  away  these  *boards,  and  came  down 
through  the  apertiu*e  left  for  the  wheel,  in 
order  to  distrain ;  and  it  was  held  that  trespass  would 
not  lie  against  him  for  so  doing. 

In  order  to  render  the  distress  complete,  there  must 
be  a  seimire  of  the  property  distrained  upon,  but  a  very 
slight  act  amounts,  in  contemplation  of  law,  to  such  a 
seizure  ;  thus,  walking  round  the  premises,  making  an 
inventory  of  the  articles  there,  and  declaring  that  they 
were  seized  as  a  distress  for  the  rent  due,  has  been 
held  to  amount  to  an  actual  seizure  of  them.     See 

^°  See  Co.  Litt.  161  a.  The  outer  door  of  a  stable,  although  not 
within  the  curtilage,  cannot  be  broken  open.  Brown  v.  Glenn,  16 
Q.  B.  254,  (71  E.  C.  L.  R.  254,).  But  the  landlord  may  open  the 
outer  door  by  the  usual  means  adopted  by  persons  having  access  to 
the  building;  as  by  turning  the  key,  lifting  the  latch,  or  by  drawing 
back  the  bolt.  Ryan  v.  Shilcock,  7  Exch.  72.  In  cases  within  the 
11  Geo.  2,  c.  19,  s.  7,  there  is,  as  has  been  already  mentioned,  an 
exception  to  this  rule. 

(a)  Williams  v.  Spencer,  5  Johns.  £52;  State  v.  Thackaw,  1  Bay, 
358;  State  v.  Armfield,  2  Hawks,  246;  Curtis  v.  Hubbard,  1 
Hill.  337. 


DISTRESS.  215 

Hutchins  v.  Scott,  2  M.  &  W.  809  ;*  Swann  v.  Earl  of 
Falmouth,  8  B.  &  C.  4.^^,  (15  E.  C.  L.  R.  227,)'; 
Wood  V.  Nmin,  5  Bing.  10,  (15  E.  C.  L.  R  445,).^i 

As  soon  as  the  distress  is  made,  the  person  distrain- 
ing ought  to  make  an  inventory  of  the  property  dis- 
trained, and  serve  it,  with  a  notice  of  the  distress,  on 
the  tenant,  either  personally  or  at  his  place  of  abode ; 
or,  if  there  be  no  house  upon  the  premises,  then  upon 
the  most  conspicuous  part  of  them ;  this  is  by  stat.  2 
"W.  &  M.  sess.  1,  c.  5,  s.  2,  on  the  construction  of 
which  you  may  consult  Walter  ^^  Rumbal,  1  Ld. 
Raym.  53 ;  Moss  v.  Gallimore,  1  Dougl.  278.^^     I  shall 

"  See  Hartley  v.  Moxham,  3  Q.  B.  701,  (43  E.  C  L.  K.  933,).  In 
this  case  the  goods  of  a  stranger  had  been  seized  as  a  distress,  but 
before  any  notice  to  him,  the  distrainer  allowed  him  to  take  them  off 
the  premises  for  a  temporary  purpose,  intending  that  they  should  be 
returned,  and  they  were  afterwards  returned ;  it  was  held  that  there 
was  no  abandonment  of  the  distress.  Kerby  v.  Harding,  6  Exch. 
234. 

12  The  words  of  this  section  are  as  follows :  Where  any  goods  or 
chattels  shall  be  distrained  for  any  rent  reserved  and  due  upon  any 
demise,  lease,  or  contract  whatsoever,  and  the  tenant  or  owner  of  the 
goods  so  distrained  shall  not,  within  five  days  next  after  such  distress 
taken,  and  notice  thereof  (with  the  cause  of  such  taking)  left  at  the 
chief  mansion  house,  or  other  most  notorious  place  on  the  premises 
charged  with  the  rent  distrained  for,  replevy  the  same,  with  sufficient 
security  to  be  given  to  the  sheriff  according  to  law,  that  then  in  such 
case,  after  such  distress  and  notice  as  aforesaid,  and  expiration  of  the 
said  five  days,  the  person  distraining  shall  and  may,  with  the  sheriff 
or  under-sheriff  of  the  county,  or  with  the  constable  of  the  hundred, 
parish  or  place,  where  such  distress  shall  be  taken  (who  are  hereby 
required  to  be  aiding  and  assisting  therein),  cause  the  goods  and 
chattels  so  distrained  to  be  appraised  by  two  sworn  appraisers  (whom 
such  sheriff,  under-sheriff,  or  constable  are  hereby  empowered  to 
swear,)  to  appraise  the  same  truly,  according  to  the  best  of  their 
understandings ;  and  after  such  appraisement  shall  and  may  lawfully 
sell  the  goods  and  chattels  so  distrained  for  the  best  price  that  can  be 


216  LANDLORD    AND    TENANT. 

|.^,  ,.^-.   have  *occasion  to  say  much  more  presently  re- 
garding the  provisions  of  this  statute.     What 

gotten  for  the  same,  towards  satisfaction  of  the  rent  for  which  the 
said  goods  and  chattels  shall  be  distrained,  and  of  the  charges  of 
such  distress,  appraisement,  and  sale,  leaving  the  overplus  (if  any)  in 
the  hands  of  the  said  sheriff,  under-sheriff,  or  constable  for  the 
owner's  use."  The  notice  required  by  the  statute  must  be  in 
writing,  for  it  is  to  he  left  at  the  chief  mansion  house.  Wilson  v. 
Nightingale,  8  Q.  B.  1034,  (55  E.  C  L.  R.  1034,).  It  should  men- 
tion distinctly  the  goods  which  are  taken,  and  give  clear  information 
in  this  respect  to  the  tenant  or  person  to  whom  they  belong,  and 
should  also  state  the  amount  of  rent  in  arrear.  In  Kerby  v.  Harding, 
6  Exch.  234,  the  notice  stated  that  the  landlord  had  distrained  the 
several  goods  and  chattels,  which  were  specified  in  a  schedule.  The 
schedule  mentioned  certain  goods,  not  including  those  of  the  plaintiff, 
who  was  a  stranger,  and  had  deposited  some  articles  belonging  to 
him  on  the  premises,  and  it  concluded,  <•  and  all  other  goods,  chat- 
tels, and  effects  on  the  said  premises,  that  may  be  required  in  order 
to  satisfy  the  above  rent,  together  with  all  necessary  expenses."  It 
was  held  that  this  notice  was  too  vague  to  justify  the  sale  of  the 
plaintiff's  goods.  In  another  case,  however,  the  notice  stated  that 
the  broker  had  taken  the  goods  mentioned  in  the  inventory  under- 
written. The  inventory  mentioned  specifically  certain  goods,  and 
then  proceeded,  "  and  any  other  goods  and  effects  that  may  be  found 
in  and  about  the  said  premises,  to  pay  the  said  rent  and  expenses  of 
this  distress."  It  appeared  that  all  the  goods  on  the  premises  were 
intended  to  be  taken,  and  the  Court  refused,  apparently  with  some 
hesitation,  to  hold  that  this  notice  was  insufficient.  Wakeman  v. 
Lindsey,  14  Q.  B.  625,  (68  E.  C.  L.  R.  625,).  The  want  of  a 
notice  does  not  render  the  distress  invalid.  Trent  v.  Hunt,  9  Exch. 
14.  In  Taylor  v.  Henniker,  12  A.  &  E.  488,  (40  E.  C.  L.  R.  245), 
a  landlord  distrained  for  a  larger  amount  of  rent  than  was  due,  and 
gave  a  notice  of  distress,  mentioning  this  incorrect  amount.  It  was 
held  that  an  action  on  the  case  lay  against  him  at  the  suit  of  the 
tenant,  although  the  goods  distrained  were  of  less  value  than  the 
rent  really  due,  and  before  the  sale  took  place,  a  second  notice  had 
been  given  claiming  only  the  amount  really  due.  But  this  case  has 
been  overruled  by  a  later  decision  in  the  Exchequer  Chamber.     See 


DISTRESS.  217 

I  said,  applies  to  *distresses  regularly  made  r*i/-o-| 
upon  the  demised  premises,  but  there  is  one 
case  to  which  I  have  not  yet  adverted,  in  which  the 
legislature  has  instituted  a  peculiar  law  applicable  to 
those  cases  in  which  the  tenant  has,  for  the  purpose  of 
preventing  his  landlord's  distress,  fraudulently  removed 
his  goods  from  the  demised  premises.  This  law,  as  I 
have  stated  in  a  previous  Lecture,^^  is  applicable  only 
to  a  case  in  which  the  tenant  has  removed  Ms  oimi 
goods^  for  it  is  obvious  that,  though  it  may  be  right  to 
prevent  him  from  withdrawing  from  the  landlord  the 
security  on  which  he  has  relied,  there  would  be  no  jus- 
tice in  preventing  a  stranger  who  had  unconsciously 
allowed  his  property  to  be  on  premises  liable  ,to  rent, 
from  saving  himself  from  their  loss,  by  withdrawing 
them  at  any,  even  the  very  latest  moment.(a) 

But,  with  regard  to  the  tenant  himself — the 
*legislature  has  thought  fit  to  guard  against  a  r^ipq-i 
case  which  frequently  happened;  that,  namely, 
of  his  taking  all  his  property  away  from  the  premises 
demised,  so  as  to  leave  the  landlord  without  any  dis- 
tress at  all.  And  accordingly,  it  is  enacted  by  stat.  1 1 
Geo.  2,  c.  19,  s.  1,  that  if  any  tenant  fratidulently  or 
clandestinely  carry  away  his  goods  to  prevent  the  land- 

Tancred  v.  Leyland,  16  Q.  B.  669,  (71  E.  C.  L.  K.  669,).  And  in 
the  still  later  case  of  Stevenson  v.  Newnham,  13  C.  B.  285,  (76  E. 
C.  L.  R.  285),  it  was  held  by  the  same  Court,  that  a  count  in  case 
for  disti-aining  for  more  rent  than  was  due,  was  bad,  although  it 
alleged  that  the  distress  was  made  maliciously ;  for  an  act  which  does 
not  amount  to  a  legal  injury  is  not  actionable,  even  if  done  with  a 
bad  intent. 

"  Ante,  p.  155. 

(a)  Adams  v.  La  Comb.   1  Dall.  440.     Frisbey   v.  Thayer,  25 
Wend.  396.     See  ante,  note  to  page  154. 


218  LANDLORD    AND    TENANT. 

lord  from  distraining,  the  landlord  ma}-,  within  thirty- 
days  next  after  such  carrying  away,  take  and  seize  the 
goods  ivJierever  they  may  he  found,  and  sell  and  dispose 
of  them  in  the  same  way  as  if  they  had  been  found 
upon  the  premises.^'^  It  is,  indeed,  provided  by  the 
second  section  of  the  Act,  that  they  shall  not  be  sold  if 
already  disposed  of  to  hona  fide  purchasers,  an  enact- 
ment the  justice  of  which  is  obvious.^°  In  section  7  is 
contained  the  part  of  the  enactment  to  which  I  am 
now  princij)ally  adverting ;  for,  with  regard  to  the  right 
to  seize  such  goods,  I  have  already,  as  you  may  re- 
member, mentioned  it  while  treating  of  the  question 
what  goods  may  be  taken.  The  mode  of  taking  them 
is  chalked  out  by  the  7th  section,  which  enacts  that 
where  any  goods  fraudulently  or  clandestinely  conveyed 
away  shall  be  kept  in  any  house,  building,  or  place — 
(I  don't  cite  the  precise  words  of  the  Act,  for  they  are 
very  long,  and.  to  read  them  at  length  woidd  take  up 
too  much  of  our  time,  and  you  may  consult  them  at 
leisure) — but  the  effect  is,  that  wherever  the  goods  be 

secured,  it  shall  be  la^vful  *for  the  landlord  or 
r*1701     ... 
'-         -*  his  agent  to  distrain  them,  first  calling  to  his 

aid  the  constable  or  peace  officer  of  the  place,  and,  in 
the  case  of  a  dwelling-house,  oath  being  first  made  be- 
fore a  justice  of  reasonable  ground  for  suspecting  that 
the  goods  are  there,  to  break  open  doors — which,  as  I 
have  already  explained,  cannot  be  done  in  an  ordinary 
case, — and  make  distress  upon  the  goods.^°(a) 

"  See  ante,  p.  154.  "  See  ante,  p.  155. 

^^  See  as  to  the  attendance  of  a  constable  in  these  cases,  Rich  v. 
Woolley,  7  Bing.  651,  (20  E.  C.  L.  R.  291,);  Cartwright  v.  Smith, 
1  M.  &  Rob.  284,  It  is  not  necessary  that  there  should  be  a  previous 
request  to  open  the  doors.     Williams  v.  Roberts,  7  Exch.  618. 

(a)  The  first  and  second  sections  of  the  act  11  Geo.  2,  c.  19,  have 


DISTRESS,  219 

This  is  an  enactment  of  considerable  severity, 
although  a  very  just  one,  and  it  has  accordingly  been 
strictly  construed.  It  has  been  held  that  a  removal  of 
goods,  to  fall  within  it,  must  have  taken  place  after  the 
rent  has  become  due.  Watson  v.  Main,  3  Esp.  15 ; 
Furneaux  v.  Fotlierhy,  4  Camp.  136  ;  Rand  v.  Vaughan, 
1  Bing.  N.  C.  767,  (27  E.  C.  L.  E.  854,)."  It  is  also 
held  in  Aslimore  v.  Hardij,  7  C.  &  P.  501,  (32  E.  C.  L. 
K.  729,)  that  the  landlord  cannot  seize  after  he  has 
conveyed  away  the  reversion,  for  he  has  then  ceased  to 
be  landlord,  and  consequently  does  not  fall  within  the 
letter  of  the  Act.  The  statute  being  a  very  important 
one,  I  wiU  refer  you  to  a  few  of  the  cases  decided  on 
it— Parry  v.  Duncan,  7  Bing.  243,^  (20  E.  C.  L.  R. 
115,);  Thornton  v.  Adams,  5  M.  &  S.  38;  Welch  v. 
Myers,  4  Camp.  368.^' 

The  distress  having  been  made,  the  next  question  is, 
icliat  is  to  he  done  ivith  it  ?     And,  in  order  *per-     ^,  ^, 

r  1 7 1 1 

fectly  to  comprehend  the  present  state  of  the  ■-  -" 
law  upon  this  subject,  it  will  be  necessary  to  show 

17  But  see  Dibble  v.  Bowater,  2  E.  &  B.   564,  (75  E.  C.  L.  R. 
564,) ;  and  ante,  p.  155,  note. 
1^  Ante,  p.  154. 

been  incorporated  in  the  Pennsylvania  Act  of  March  21st,  1772. 
The  seventh  section  was  not  incorporated,  and  has  never  been  followed. 
It  was  early  decided  under  this  statute  that  the  goods  of  a  stranger 
could  not  be  followed  and  distrained.  Adams  v.  Lacomb,  1  Dall. 
440.  The  goods  of  the  tenant's  assignee  may  be  followed  and 
seized,  if  clandestinely  removed.  Jones  v.  Gundrim,  3  W.  &  S.  531, 
but  not  those  of  the  tenant  after  a  hand  fide  sale  to  an  innocent 
purchaser.  Clifford  v.  Beems,  3  Watts,  246.  And  it  has  been  held 
to  be  a  trespass  to  enter  the  house  of  a  stranger  to  search  for  and 
distrain  goods  fraudulently  removed,  if  no  goods  of  the  tenant  are 
there  found.  Ilobbs  v.  Geiss,  13  S.  &  R.  417.  See  ante,  note  to 
page  154. 


220  LANDLORD    AND    TENANT. 

briefly  how  the  matter  stood  at  common  law,  and  to 
enumerate  the  changes  which  have  since  taken  place 
in  their  order. 

At  common  law,  the  distress  was  but  a  pledge  for 
the  rent  arrear,  the  landlord  was  entitled  to  keep  it  as 
a  security  imtil  such  rent  was  satisfied,  but  he  could  do 
no  more ;  if  he  sold  it  he  became  a  trespasser  ah  initio^ 
and  all  his  proceedings  were  void  ;^^  the  general  prin- 
ciple being,  that,  when  a  man  abuses  an  authority 
given  him  by  law  to  take  another's  goods,  or  enter  on 
another's  premises,  the  abuse  renders  him  a  trespasser, 
in  contemplation  of  law,  from  the  very  commencement 
of  the  transaction.  This  principle,  which  you  will 
find  laid  down  and  discussed  in  the  Six  Carpenters' 
Case,  8  Co.  146,  is  no  longer,  as  I  shall  by  and  by 
show  you,  applicable  to  distresses  for  rent  arrear.  At 
common  law,  however,  it  was  so,  and  its  efi'ect  was 
that,  if  the  landlord  abused  his  authority  to  distrain, 
he  became  a  trespasser  from  the  very  beginning  of  the 
transaction.  And  a  sale  of  the  distress,  which  he  had 
then  no  right  to  sell,  was  clearly  such  an  abuse.-^ 

*The  distress,  as  I  have  said,  was  at  com- 

r*1721  • 

•-         -^  mon  law  a  pledge,  but  it  was  a  pledge  mth 

^^  See  Gilbert  on  Dist.  67.  Distresses  damage  feasant  are  not 
affected  by  the  2  Wm.  &  M.  sess.  1,  c.  5,  and  this  rule  of  the  com- 
mon law  is  therefore  still  applicable  to  them,  ib. 

^  See  the  notes  to  this  case,  1  Smith's  L.  C.  65.  Although  the 
11  Geo.  2,  c.  19,  s.  19,  enacts  that  where  a  distress  is  made  for  rent 
which  is  due,  any  irregularity  or  unlawful  act  afterwards  done  shall 
not  make  the  landlord  a  trespasser  ah  initio,  he  may  still  become 
such  by  seizing  goods  which  are  not  distrainable.  But  if  he  distrains 
goods  which  are  privileged  as  well  as  other  goods  which  are  liable  to 
be  distrained,  he  is  only  a  trespasser  as  to  the  former.  Harvey  v. 
Pocock,  11  M.  &  W.  740.*  lie  appears,  however,  to  be  in  this  case 
a  trespasser  ah  initio  as  to  the  entry.  Price  v.  Woodhouse,  1  Exch. 
559.     See  also  post,  p.  176,  note  (25.) 


DISTRESS.  221 

which  the  landlord  could  not  deal  as  he  thought 
proper.  It  was  his  duty  to  impound  it  in  a  common 
pound,,  the  state  of  which  he  w'as  bound  to  take  care 
should  be  suitable  to  the  nature  of  the  distress ;  thus, 
if  the  articles  distrained  were  of  a  perishable  nature, 
he  was  to  secure  them  in  a  pound  covert,  or  weather- 
proof; if  they  were  cattle,  in  an  open  pound,  whither 
the  owner  might  come  to  feed  them  ;^^  unless,  indeed, 
he  chose  to  take  upon  himself  the  responsibility  of 
doing  so.  The  state  of  the  common  law  on  this  subject 
you  will  find  discussed  in  the  case  of  Wilder  v.  Speei\ 
8  A.  &  E.  547,  (35  E.  C.  L.  R.  450,)  which  was  a  case 
of  a  distress  damage  feasant ,  in  which  the  common  law 
on  this  subject  remains  unaltered. 

Subject,  however,  to  this  rule  the   landlord  might 
have   taken  the   distress  to  any  pound  he  pleased,  a 
right  fraught  with  the  greatest  hardship  to  the  tenant 
who  was  obliged  to  feed  his  cattle  while  they  remained 
in  the  pound,  if  it  were  a  public  *one,  though    ^ 
if  the  landlord  put  them  into  a  private  one,  then  '-  ^ 

indeed,  he  was  obliged  to  supply  them  with  sustenance. 
But  if  he  put  them  in  a  puhlic  pound,  they  lay  there  at 
the  tenant's  risk,  and,  if  they  starved,  it  was  his  loss, 
the  landlord  w^as  not  answerable.^'^  Now,  indeed,  by 
a  just  and  humane  law,  stat.  5  «&  6  W.  4,  c.  59,  the 
person  who   distrains   cattle,   for  whatever   cause,   is 

21  See  Gilbert  on  Dist.  62 ;  2  lust.  100 ;  Co.  Litt.  37  b;  and  Bac. 
Ab.  Distress  (D).  The  distrainer  could  not  at  common  law,  and  can- 
not now,  work  or  use  the  distress,  for  he  has  no  property  in  it,  but 
only  a  power  by  law  to  take  it,  ih.  He  is  not  entitled  to  bind  or  tie 
the  beasts  distrained  in  the  pound,  even  to  prevent  their  escape. 
Gilbert  on  Dist.  65. 

22  See  Bac.  Ab.  Distress  (D),  and  Doct.  and  Stud.  p.  14  ;  Dial.  1, 
c.  5. 


222  LANDLORD    AND    TENANT. 

bound  to  supply  them  with  food  ;-^  but,  at  common  law, 
the  matter  was  as  I  have  stated  it  to  you. 

23  It  is  enacted  by  s.  4  of  this  act  that,  "  every  person  who  shall 
impound  or  confine,  or  cause  to  be  impounded  or  confined,  any  horse, 
ass,  or  other  cattle  or  animal,  in  any  common  pound,  open  pound,  or 
close  pound,  or  in  any  inclosed  place,  shall  and  he  is  hereby  required 
to  find,  provide,  and  supply  such  horse,  ass,  and  other  cattle  or  animal 
so  impounded  or  confined,  daily  with  good  and  sufficient  food  and 
nourishment  for  so  long  a  time  as  such  horse,  ass,  or  other  cattle  or 
animal  shall  remain  and  continue  so  impounded  or  confined  as  afore- 
said ;  and  every  such  person  who  shall  so  find,  provide,  and  supply 
any  such  horse,  ass,  or  other  cattle  or  animal,  with  such  daily  food 
and  nourishment  as  aforesaid,  shall  and  may,  and  he  and  they  are 
hereby  authorised  and  empowered  to  recover  of  and  from  the  owner 
or  owners  of  such  cattle  or  animal  not  exceeding  double  the  full  value 
of  the  food  and  nourishment  so  supplied  to  such  cattle  or  animal  as 
aforesaid,  by  proceeding  before  any  one  justice  of  the  peace  within 
whose  jurisdiction  such  cattle  or  animal  shall  have  been  so  impounded 
and  supplied  with  food  as  aforesaid,  in  like  manner  as  any  penalty  or 
forfeiture,  or  any  damage  or  injury,  may  be  recovered  under  and  by 
virtue  of  any  of  the  powers  or  authorities  in  this  act  contained,  and 
which  value  of  the  food  and  nourishment  so  to  be  supplied  as  afore- 
said, such  justice  is  hereby  fully  authorised  and  empowered  to  ascer- 
tain, determine,  and  enforce  as  aforesaid,  and  every  person  who  shall 
have  so  supplied  such  food  and  nourishment  as  aforesaid  shall  be  at 
liberty,  if  he  shall  so  think  fit,  instead  of  proceeding  for  the  recovery 
of  the  value  thereof  as  last  aforesaid,  after  the  expiration  of  seven 
clear  days  from  the  time  of  impounding  the  same,  to  sell  any  such 
horse,  ass,  or  other  cattle  or  animal,  openly  at  any  public  market 
(after  having  given  three  days'  public  printed  notice  thereof)  for  the 
most  money  that  can  then  be  got  for  the  same,  and  to  apply  the 
produce  in  discharge  of  the  value  of  such  food  and  nourishment  so 
supplied  as  aforesaid,  and  the  expenses  of  and  attending  such  sale, 
rendering  the  overplus  (if  any)  to  the  owner  of  such  cattle  or  animal." 
By  s.  5,  it  is  provided  that,  where  cattle  have  been  impounded  with- 
out sufficient  food  more  than  twenty-four  hours  any  person  may  enter 
into  the  pound  and  supply  them  with  food  without  being  liable  to  an 
action  of  trespass  or  other  proceeding.  It  will  be  observed  that  this  act 


DISTRESS.  223 

*Now  it  is  hardly  necessary  to  observe,  that  ^ 
this  state  of  the  law  was  fraught  with  hardship  ^  J 
to  the  tenant,  so  long  as  the  landlord  had  a  right  to 
drive  the  cattle  to  a  distance  ;  and,  therefore,  the  first 
improvement  in  the  law  was  made  by  stat.  52  Hen.  3, 
cap.  4,  [Statute  of  Marlebridge]  which  prohibited  the 
person  distraining  from  driving  the  distress  out  of  tlie 
county.{a)  But,  even  this  being  found  too  great  a 
latitude,  stat.  1  &  2  Philip  &  Mary,  c.  12,  was  passed, 
which  directed  that  no  distress  of  cattle  should   be 

aiFords  no  means  of  recovering  the  value  of  the  food  supplied,  except 
where  it  is  furnished  by  the  party  impounding.  Mason  v.  Newland,  9 
C.  &  P.  575,  (38  E.  C.  L.  R.  337.).  If  several  horses  are  distrained, 
the  distrainer  may  sell  one  or  more  of  them  for  the  expenses  of  all. 
But  in  pleas  to  an  action  of  trespass  for  taking  and  converting  the 
horses  sold  it  must  be  alleged  that  it  was  necessary  to  sell  them  for  the 
payment  of  the  expenses,  Layton  v.  Hurry,  8  Q.  B.  811,  (55  E.  C.  L. 
R.  811,).  After  a  sale,  under  this  act,  the  distrainer  can  only  keep 
the  value  of  the  food  and  the  expenses  of  the  sale ;  for,  subject  to 
this  deduction,  the  statute  requires  that  the  overplus  should  be 
returned  to  the  owner  of  the  cattle.     Mason  v.  Newland,  uhi  sup. 

(a)  There  has  been  no  re-enactment  in  Pennsylvania  of  this  section 
of  the  Statute  of  Marlebridge,  nor  is  there  anything  in  the  Act  of 
March,  1772,  prescribing  where  the  goods  are  to  be  impounded.  The 
report  of  the  judges,  however,  recommends  the  4th  Chapter  of  52 
Henry  III.  to  be  incorporated.  The  1st  section  1  and  2  Philip  and 
Mary,  c.  12,  is  also  reported  as  in  force  and  to  be  incorporated.  But 
it  was  said  in  Woglaw  v.  Cowperthwaite,  2  Dall.  68,  to  have  been 
the  usage  in  Pennsylvania,  both  before  and  since  the  Act  of  1772,  to 
impound  the  distress  on  the  premises,  and  there  to  appraise  and  sell 
it,  agreeably  to  the  statute  of  11  George  II.  c.  19,  though  the  clause 
of  that  statute  which  gives  this  power  is  not  contained  in  the  Act  of 
Assembly,  and  that  the  construction  of  the  statute  2  W.  &  M.  c.  5, 
that  the  distrainer  may  leave  the  distress  on  the  premises  for  the  five 
days  mentioned  in  the  act,  but  becomes  a  trespasser  after  that  time, 
will  hold  under  the  act  of  1772. 


224  LANDLORD    AND     TENANT. 

driven  out  of  the  hundred^  [rape,  ivapentaJce,  or  laiTie] 
where  it  was  taken,  except  to  an  open  pound  [in  the 
same  shire]  not  above  three  miles  from  the  place  of 
taking  it.  *  And,  at  last,  it  appeared  so  much 
^  '  -'  better  both  for  the  landlord  and  the  tenant  that 
the  distress  should  not  be  taken  off  the  ]3remises  at  all, 
but  should  remain  there  in  a  situation  equally  and 
easily  accessible  to  both,  that  by  stat.  11  Geo.  2,  c.  19, 
s.  10,  it  was  enacted  that  "in  cases  of  distress  for 
rent,  the  person  distraining  may  impound  or  other- 
wise secure  the  distress  on  such  part  of  the  premises 
as  shall  be  most  convenient. "^^  Upon  this  statute, 
which  is  the  law  now  in  force  with  regard  to  the  im- 
pounding a  distress  for  rent,  it  has  been  held  that  the 
landlord  ought  not  to  deprive  the  tenant  of  the  enjoy- 
ment of  his  whole  house,  or  even  interfere  with  it ;  but 
ought  to  put  the  things  distrained  into  one  room,  if 
that  can  be  conveniently  accomplished,  unless,  indeed, 
he  obtains  the  tenant's  consent  to  leave  them  in  their 
ordinary  situations,  of  which  consent  very  slight  evi- 
dence AviU  be  sufficient,  as  it  is  so  obviously  the 
tenant's  ovro.  interest  to  grant  it.  In  the  absence  of 
consent,  it  is  obvious  that  the  part  of  the  premises  to 
be  taken  for  the  purpose  of  securing  the  distress  will, 
in  each  case,  depend  on  the  nature  of  the  distress,  and 
of  the  premises  in  the  particular  case.  In  some 
instances  it  may  be,  and  indeed  has  been,  necessary  to 
^  occupy  the  whole  premises;  *for  instance, 
■-         -*   when  they  were  a  small  cottage.     See  on  the 

^*  The  words  of  this  section  are,  "  that  it  shall  be  lawful  for  any 
person  or  persons  lawfully  taking  any  distress  for  any  kind  of  rent  to 
impound  or  otherwise  secure  the  distress  so  made,  of  what  nature  or 
kind  soever  it  may  be,  in  such  place,  or  on  such  part  of  the  premises 
chargeable  with  the  rent,  as  shall  be  most  fit  and  convenient  for  the 
impounding  and  securing  such  distress." 


DISTRESS.  225 

above  points,  Washhorn  v.  Blacky  11  East,  405  n;   Cox 
V.  Painter,  7  C.  &  P.  767,  (32  E.  C.  L.  R.  862).-^ 

25  See  also  Woods  v.  Durant,  16  M.  &  "W.  149.*  When  a  tender 
of  the  rent  has  been  made,  it  often  becomes  material  to  inquire  into 
what  constitutes  an  impounding ;  for,  as  is  said  by  Lord  Coke  in  the 
Six  Carpenters'  Case  (8  Rep.  146),  "tender  upon  the  land  before  the 
distress,  makes  the  distress  tortious;  tender  after  the  distress,  and 
before  the  impounding,  makes  the  detainer,  and  not  the  taking, 
wrongful ;  tender  after  the  impounding  makes  neithel-  the  one  nor 
the  other  wrongful,  for  then  it  comes  too  late,  because  then  the  case 
is  put  to  the  trial  of  the  law  to  be  there  determined."  And  these 
rules  apply  to  goods  seized  for  rent,  as  well  as  to  cattle  taken  damage 
feasant.  Ladd  v.  Thomas,  12  A.  &  E.  117,  (40  E.  C.  L.  R.  67,)- 
See  as  to  what  is  a  sufficient  impounding  to  make  a  tender  too  late. 
Firth  V.  Purvis,  5  T.  R.  432;  Browne  v.  Powell,  4  Ring.  230,  (13  E. 
C.  L.  R.  480) ;  Thomas  v.  Harries,  1  M.  &  Gr.  695,  (39  E.  C.  L. 
R.  607) ;  Ellis  v.  Taylor,  8  M.  &  W.  415  ;*  Peppercorn  v.  Hofman, 
9  M.  &  W.  618.*  If  a  sufficient  tender  is  made  before  the  distress, 
the  remedy  is  replevin  or  trespass ;  if  it  be  made  after  the  distress  and 
before  the  impounding,  detinue  is  the  right  form  of  action,  Gulliver  v. 
Cosens,  1  C.  B.  788,  (50  E.  C.  L.  R.  788,).  In  Ladd  v.  Thomas,  Lord 
Denman,  C.  J.,  was  of  opinion  that  trespass  was  the  proper  form  of 
action  for  continuing  on  the  premises  to  keep  possession  of  the  goods 
distrained  after  the  distress  had  ceased  to  be  lawful.  See  also  Pepper- 
corn V.  Hofman,  and  Ash  v.  Dawnay,  8  Exch.  237.  In  West  v.  xvibbs, 
4  C.  B.  172,  (56  B.  C.  L.  R.  172),  however,  which  was  an  action  of 
trespass  for  seizing  goods,  it  was  held,  by  the  Court  of  Common  Pleas, 
that  a  landlord,  who  had,  after  the  impounding,  accepted  the  rent  and 
the  expenses  of  distress,  could  not  be  treated  as  a  trespasser  merely 
because  he  retained  the  possession  of  the  goods  distrained,  although 
his  refusal  to  give  them  up  might  render  him  liable  in  trover.  It 
must  be  observed  that  since  the  Common  Law  Procedure  Act,  1852 
(15  &  16  Vic.  c.  76),  the  distinctions  between  different  actions,  except 
so  far  as  they  are  matter  of  substance,  are  no  longer  important,  and 
indeed  have  ceased  to  exist.  The  6  &  7  Vic.  c.  30,  which  was  passed. 
to  amend  the  law  relating  to  pound-breach  and  rescue,  and  which 
gives  power  to  two  justices  in  certain  cases  to  try  summarily  offences 
of  this  description,  does  not  apply  where  the  cattle  are  seized  under  a 
distress  for  rent.     See  s.  1. 

15 


226  LANDLORD    AND    TENANT. 

P^,  ^^,  With  regard  to  a  distress  of  growing  crops, 
L  -1  *which,  though  not  distrainable  at  common  law, 
may,  as  I  stated  in  a  former  Lecture,^®  be  distrained 
by  virtue  of  stat.  11  Geo.  2,  c.  19,  s,  8.  The  same 
section  directs  how  they  shall  be  impounded  after  they 
have  been  cut,  gathered,  and  carried :  the  Act  directs, 
that  they  shall  he  laid  up  in  hams,  or  other  pi'oper  places 
on  the  premises,  or  as  near  thereto  as  may  he  if  there  he 
none  on  the  p)remises.''{ci) 

vSuch  is  the  state  of  the  law  with  regard  to  the 
IMPOUNDING  the  distress,  which  is  the  first  step  to  be 
taken  with  regard  to  it ;  and  next  comes  the  inquiry, 
what  shall  become  of  it  after  it  has  been  impounded  1 
Now  I  have  stated,  that  at  common  law  it  was  a  mere 
pledge,  the  landlord  could  not  have  disposed  of  it ;  he 
might  detain  it  till  the  rent  was  paid,  but  he  could  do 

25  Ante,  p.  149. 

^'  This  section  enables  the  landlord  to  distrain  the  crops,  «  and  the 
same  to  cut,  gather,  make,  cure,  carry,  and  lay  up,  when  ripe,  in  the 
barns,  or  other  proper  place  on  the  premises  so  demised  or  holden ; 
and  in  case  there  shall  be  no  barn  or  proper  place  on  the  premises  so 
demised  or  holden,  then  in  any  other  barn  or  proper  place  which  such 
lessor  or  landlord,  lessors  or  landlords,  shall  hire  or  otherwise  procure 
for  that  purpose,  and  as  near  as  may  be  to  the  premises." 

(a)  The  seventh  section  of  the  Pennsylvania  Act  of  1772,  autho- 
izes  growing  crops  to  be  distrained,  but  there  is  no  provision  similar 
to  the  8th  section  of  11  George  II.  ch.  19,  which  directs  that  they 
shall  be  laid  up  in  barns.  The  Pennsylvania  Act  authorizes  a  sale, 
and  declares  that  "  the  purchaser  of  any  such  corn,  grass,  hops,  roots, 
fruits,  pulse,  or  other  product,  shall  have  free  egress  and  regress  to 
and  from  the  same  where  growing,  to  repair  the  fences,  from  time  to 
time,  and  when  ripe  to  cut,  gather,  make,  cure,  and  lay  up  and 
thrash,  and  after  to  carry  the  same  away  in  the  same  manner  as 
the  tenant  might  legally  have  done,  had  such  distress  never  been 
made.'^ 


DISTRESS.  227 

no  more.  This  was  a  bad  law  both  for  landlord  and 
tenant.  It  did  not  always  procure  satisfaction  of  his 
rent  for  the  one,  while  it  often  had  the  effect  of 
depriving  the  other  of  all  means  of  satisfying  it.  It 
was,  therefore  enacted  by  stat.  2  Wm.  &  M.,  sess.  1,  c. 
5,  s.  2,  "  That  where  any  goods  or  chattels  shall  be 
distrained  for  rent  reserved  and  due  on  any    „ 

r  1 7Si 

*contract,  and  the  tenant  or  owner  of  them  ^  -■ 
shall  not  witldn  five  days  {jiexf]  after  the  distress  mid 
notice  thereof,  (with  the  cause  of  such  taking)  left  at  the 
chief  mansion  house,  or  other  most  notorious  place 
upon  the  premises  charged  with  the  rent,  replevy  the 
same ;  the  person  distraining  may,  with  the  sheriff  or 
under-sheriff  of  the  county,  or  constable  of  the  hun- 
dred, parish,  or.  place  where  the  distress  was  taken, 
cause  the  distress  to  be  aiJpraised  by  two  sworn  ap- 
praisers, whom  the  sheriff  or  other  officers  shall  swear 
to  appraise  them  truly,  and,  after  such  appraisement, 
may  sell  the  same  towards  satisfaction  of  the  rent  and 
the  charges  of  the  distress  and  appraisement,  leaving 
the  overplus,  if  any,  in  the  hands  of  the  sheriff"  or  other 
officer  for  the  owner's  use.^^  This  being  the  important 
practical  enactment  relative  to  this  part  of  the  subject, 
it  is  necessary  to  pay  some  attention  to  its  provisions. 
And  first  you  will  observe,  that  the  sale  is  not  to 
take  place  unless  the  tenant  omit  to  replevy  ivithin 
fice  days  after  the  distress.  These  five  days  are  to  be 
reckoned  inclusive  of  the  day  of  the  sale  ;  Wal-  ^ 
lace  V.  Kimj,  1  H.  Bl.  13  •-'^  and  though,  *upon  L  ^  '^J 

23  These  are  not  the  exact  words  of  this  section,  but  the  substance 
of  it  is  given.  See  ante,  p.  1G6,  note  ^^  If  the  overplus  is  not 
left  in  the  hands  of  the  sheriff,  the  tenant  cannot  bring  an  action  for 
money  had  and  received;  he  must  sue  in  case  under  the  statute. 
Yates  V.  Eastwood,  6  Exch.  805. 

2^  This  case  has  been   overruled.     It  i.'^  now  held  that  under  this 


228  LANDLORD    AND    TENANT. 

the  one  hand,  the  landlord  must  not  incumber  the 
premises  by  keeping  the  goods  there  after  the  five 
days,  and  a  reasonable  time  for  appraising  and  selling 
them  has  elapsed,  Griffin  v.  Scott,  2  Ld.  Raym.  1424; 
yet,  on  the  other  hand,  he  must  not  sell  before  five 
times  the  space  of  twenty-four  hours  has  completely 
elapsed.  Harper  v.  Tasicell,  6  C.  &  P.  166.  (25  E. 
C.  L.  R.  376.).'V) 

statute,  as  in  otlier  cases  of  a  like  kind,  the  days  must  be  calculated 
inclusively  of  the  last  day,  and  exdiisireli/  of  the  day  of  taking. 
Robinson  v.  Waddington,  13  Q.  B.  753,  (66  E.  C  L.  R.  753,). 

^°  See  the  last  note,  the  cases  cited,  ante,  p.  176,  note  ^^,  the 
judgment  of  Baron  Parke  in  Piggott  v.  Birtles,  1  M.  &  W.  448,*  and 
the  notes  to  Simpson  v.  Hartopp,  1  Smith's  L.  C.  193.  As  to  the 
sale  of  hay,  straw,  and  growing  crops,  see  ante,  p.  150,  note  ^^ 

(a)  In  Pennsylvania,  in  the  construction  of  the  Act  of  1772,  it  is 
held  that  the  day  of  making  the  distress  is  to  be  excluded  in  comput- 
ing the  time,  and  Sunday  is  not  to  be  counted  as  one  of  the  five  days 
if  it  happen  to  be  the  last  if  counted.  Thus  where  the  distress  was 
made  on  Tuesday  that  day  was  excluded ;  then  the  fifth  day  being 
Sunday  was  excluded  also,  and  Monday  was  held  to  be  the  fifth  day 
after  the  distress.  "  It  is  true,"  the  Court  say,  "  that  a  different 
rule  has  been  adopted  in  England,  in  reckoning  the  five  days  allowed 
for  a  like  purpose  by  the  statute  of  2  W.  &  M.  as  to  the  commence- 
ment or  first  day  thereof.  In  Wallace  v.  King,  1  Hen.  Bl.  Rep.  13, 
the  day  of  the  distress  was  held  to  be  the  first  of  the  five  days.  This 
we  think,  however,  is  rather  too  severe  a  construction  against  the 
tenant."  McKinney  v.  Reader,  6  Watts,  37.  It  was  held  in  the 
same  case  that  the  omission  to  give  the  notice  did  not  render  the 
distress  unlawful,  but  that  it  was  necessary  to  warrant  a  sale  of  the 
goods.  The  notice  may  be  given  either  to  the  tenant  or  the  owner. 
Caldcleugh  v.  Hollingsworth,  8  W.  &  S.  302.  And  an  omission  to 
appraise  and  advertise  renders  the  landlord  a  trespasser  ah  initio. 
Kerr  v.  Sharp,  14  S.  &  R.  399.  The  Pennsylvania  Act  of  21st 
March,  1772,  requires  six  days  notice  of  the  sale.  The  language  of 
the  Act  is  that  the  person  distraining  sliall  and  mai/,  with  the 
sheriff,  under   sheriff,   or  any  constable,  &c.,  cause  the   goods  to   be 


DISTRESS.  229 

I  have  already  spoken  of  the  notice  of  distress  which 
the  Act  requires.  With  regard  to  the  appraisement^ 
the  decisions  are  extremely  fine-drawn,  and  the  law  on 
that  subject  has  been  rendered  more  complicated  by 
stat.  57  Geo.  3,  c.  93.  Practically  I  recommend  you 
to  have  the  distress  in  every  case  appraised  by  tico 
sworn  appraisers.  The  decisions,  among  which  there 
is  some  variance,  are  Fletcher  v.  Saunders,  1  M.  &  E,ob. 
375 ;  Blsliop  V.  Bnjant,  6  C.  &  P.  484 ;  (25  E.  C.  L. 
R.  536 ;)  Allen  v.  Flick&r,  10  A.  &  E.  640,  (37  E.  C. 
L.  R.  204.)'^     As  to  the  swearing  of  the   appraisers, 

2'  The  57  Geo.  3,  c,  93,  enacted  that  no  person  making  any  dis- 
tress for  rent,  where  the  sum  demanded  and  due  did  not  exceed  20^., 
should  take  in  respect  of  the  distress  other  costs  or  charges  than  those 
fixed  by  the  schedule  of  the  act ;  and  in  the  schedule  a  sum  is 
allowed  in  respect  of  the  appraisement,  "  whether  by  one  broker  or 
more."  Allen  v.  Flicker,  cited  in  the  text,  decided  that,  notwith- 
standing this  provision,  there  must  be  two  appraisers,  even  where  the 
rent  distrained  for  does  not  exceed  20^. 


appraised  by  two  respectable  freeholders ;  and  after  such  appraise- 
ment shall  or  may,  after  six  days  public  notice,  lawfully  sell  the 
goods  for  the  best  price  that  can  be  gotten  for  the  same,  for  and 
towards  satisfaction  of  the  rent  and  the  charges  incurred,  leaving  the 
overplus,  if  any,  in  the  hands  of  the  sheriff,  under  sheriff  or  con- 
stable, for  the  owner's  use.  In  Quinn  v.  Wallace,  6  Wh.  461,  this 
language  was  said  to  be  imperative — that  the  person  distraining  must 
sell ;  and  the  proceedings  under  this  statute  were  said,  by  Judge 
Kennedy,  to  have  changed  the  nature  of  a  distress,  so  that  it  is  no 
longer  a  mere  pledge.  But  that  it  was  like  to  an  execution  with  the 
single  exception  that  the  tenant  was  entitled  to  his  replevin.  The 
District  Court  for  the  City  of  Philadelphia  held  in  E-eichenback  v. 
Post,  (not  reported)  that  the  "sheriff,  under-sheriff,  or  constable," 
was  only  necessarily  called  in  at  the  appraisement  that  the  subsequent 
sale  might  be  made  without  their  presence  or  concurrence. 

It  was  held  in  New  York  also  that  five  full  days  were  to  be  given 
to  the  tenant  after  the  day  on  which  notice  of  the  distress  is  given. 
Butts  V.  Edwards,  2  Denio,  164. 


230  LANDLORD    AND    TENANT. 

they  are  to  be  sworn  before  the  constable  of  the  xDarish 
where  the  distress  is  taken.     Avenell  v.  *  Gro- 
\*^^^'^   Jeer,  Moo.  &  Malk.  172;  (22  E.  C.  L.  R.  499,) 
Kenneij  v  May,  1  M.  &  Rob.  56.'- 

We  have  now. seen  icliai  the  landlord  is  to  distrain; 
where  he  is  to  distrain;  ivlien  he  is  to  distrain;  /^o^^.he 
is  to  distrain ;  and  in  lohat  manner  the  distress  is  to  he 
disposed  of.  It  remains  to  consider,  what  is  the  remedy 
if  the  distress  heillegcdly  levied  or  improperly  imrsued. 

This  divides  itself  into  two  questions ;  first,  what  is 
the  tenant's  remedy  if  the  distress  be  for  a  lawful 
demand  but  illegally  executed,  that  is,  if  the  rent  be 
really  due  and  a  distress  justifiable,  but  yet  the  pro- 
ceedings taken  in  tlie  particular  distress  be  illegal ;  and 
secondly,  what  is  the  remedy  where  the  distress  is 
wholly  unwarranted  and  unjustifiable. 

Now,  in  the  first  case,  I  have  already  stated,  that 
the  rule  of  the  common  law  was,  that  if  the  person 
distraining  abused  the  right  given  him  by  the  law  to 
distrain,  his  whole  proceeding  became  null  and  void, 
and  he  was  considered  as  a  trespasser  from  the  very 
beginning."'  But  by  stat.  11  Geo.  2,  c.  19,  s.  19,(a) 
"  When  any  distress  shall  be  made  for  any  rent  justly 
due,  and  any  irregularity  or  unlawful  act  shall  be 
afterwards  done  by  the  party  distraining  or  his  agent, 

^2  A  distress,  which  is  appraised  by  the  person  who  makes  it,  is 
irregular.  See  Westwood  v.  Cowne,  1  Stark.  172,  (2  E.  C.  L.  R. 
73),  and  the  judgment  of  the  Lord  Chief  Justice  Best,  in  Lyon  v. 
Weldon,  2  Bing.  336,  (9  E.  C.  L.  R  604,).  The  appraisers  must  be 
reasonably  competent,  but  they  need  not  be  professional  appraisers. 
Roden  V.  Eyton,  6  C.  B.  427,  (60  E.  C.  L.  R.  427,). 

2^  Ante,  p.  171. 

(a)  In  Pennsylvania,  where  this  section  of  the  statute  is  not  in 
force,  the  distrainer  under  such  circumstances  would  be  a  trespasser 
ah  initio.     Kerr  v.  Sharp.  14  S.  &  R.  399. 


WRONGFUL    DISTRESS.  231 

the  distress  shall  not  be  deemed  unlawful,  nor  the  dis- 
trainer a  *trespasser  ah  initio ;  but  the  party 
grieved  may  recover  satisfaction  in  an  action  of  '- 
trespass  or  on  the  case."^'^     See,  on  this  statute,  Winter- 
hourne  v.  Morgan^  11  East.  395.     A  subsequent  section, 
s.  20,  allows   the   landlord   to    tender   amends  before 

^*  These  are  not  the  precise  words  of  the  statute.  The  true  con- 
struction of  this  section  has  been  held  to  be  that  case  must  be  brought 
when  the  injury  complained  of  is  the  subject  of  an  action  on  the  case, 
and  trespass  where  it  amounts  to  a  trespass.  The  nature  of  the  ir- 
regularity determines  the  nature  of  the  action.  See  the  judgment  of 
Lord  Ellenborough  in  Winterbourne  v.  Morgan,  cited  above.  But,  as 
has  been  already  observed,  since  the  Common  Law  Procedure  Act, 
1852  (15  &  16  Vic.  c.  76),  many  of  the  peculiar  forms  of  pleading 
which  made  a  distinction  between  different  actions  are  no  longer  in 
use.  Trespass  will  not  lie  for  an  excessive  distress;  the  proper 
remedy  is  an  action  on  the  case  founded  on  the  Statute  of  Marie- 
bridge.  (52  Hen.  3).  Hutchins  v.  Chambers,  1  Burr.  590.  Trover 
will  not  lie,  since  the  11  Geo.  2,  c.  19,  for  goods  irregularly  sold 
under  a  distress,  if  the  whole  or  any  part  of  the  rent  distrained  for 
was  due.  Wallace  v.  King,  1  H.  Bl.  13  ;  Whitworth  v.  Smith,  1  M. 
&  Rob.  193.  A  distress,  to  be  excessive,  must  be  obviously  unrea- 
sonable. A  landlord  is  entitled  to  protect  himself  by  seizing  what 
any  reasonable  man  would  deem  adequate;  and  is  only  bound  to 
exercise  a  reasonable  and  honest  discretion.  See  Roden  v.  Eyton,  6 
C.  B.  427,  (60  E.  C.  L.  R.  427,).  A  landlord  is  not  liable  in  tres- 
pass for  the  acts  of  the  broker  whom  he  employs  to  distrain,  unless 
he  authorises  them  beforehand,  or  subsequently  assents  to  them,  with 
a  knowledge  of  what  has  been  done.  Therefore,  where,  in  an  action 
of  trespass  against  a  landlord,  it  appeared  that  he  had  given  a  warrant 
to  distrain  to  a  broker,  and  that  the  latter  had  taken  away  a  fixture 
and  sold  it,  and  had  paid  the  proceeds  to  the  landlord,  who  had  re- 
ceived them  without  inquiry  and  without  knowing  that  anything 
irregular  had  been  done,  it  was  held  that  the  landlord  was  not  liable. 
Freeman  v.  Rosher,  13  Q.  B.  780,  (66  E.  C.  L.  R.  780,).  See  also 
as  to  the  remedies  of  the  tenant  in  respect  of  irregularities  in  the 
making  and  carrying  out  of  the  distress,  ante,  p.  176,  note  ^*,  and 
Woodfall's  Landl.  and  Ten.  703—706  (6th  Edit.). 


232  LANDLORD    AND    TENANT. 

action  brought.     Thus,  you  perceive,  the  ordinary  rule 

of  law  laid  down  in  the  Six  Carpenters^  *Gase 

r*182l  . 

^       "'-'   is  relaxed  in  favour  of  a  landlord  by  tliis  statute. 

Secondly,  where  the  distress  is  totally  unwarrantable. 
This  involves  two  cases : — The  first,  where  the  party 
distraining  is  a  mere  stranger,  and  has  no  pretence 
whatever  to  make  any  claim  for  rent.  In  such  a  case, 
the  tenant  may,  of  course,  pursue  any  remedy  adapted 
by  law  to  a  violent  seizure  of  goods.  He  may,  if  he 
think  proper,  bring  his  action  of  replevin,  in  which 
case  he  will  have  the  goods  at  once  restored  to  him ; 
but  he  may  equally  bring  trespass  or  trover,  and, 
though  in  these  forms  of  action  he  cannot  recover  his 
goods  in  specie^^  he  will,  at  least,  recover  a  compensa- 
tion for  them  in  the  shape  of  damages. 

Where,  however,  the  landlord  distrains,  but  im- 
properly so,  the  tenant  may,  it  is  true,  bring  trover  or 
trespass  against  him;'^°  but  the  form  of  action  usually 
selected  is  replevin^  since  that  enables  him  to  obtain 
his  goods  at  once,  and  have  the  benefit  of  them  pend- 
ing the  suit  brought  to  try  the  landlord's  right.  The 
action  of  replevin  is  a  very  singular  one.^"(rt)     It  com- 

3^  Under  the  Common  Law  Procedure  Act,  1854  (17  &  18  Vic.  c. 
125),  the  Courts  of  Common  Law  have  now  power  to  compel  the 
delivery  up  of  specific  chattels  in  actions  brought  for  their  detention. 
See  s.  78. 

2^  Under  the  2  Wm.  &  M.  sess.  1,  c.  5,  s.  5,  the  landlord  is  liable, 
in  an  action  on  the  case,  to  pay  double  the  value  of  the  goods  dis- 
trained, if  at  the  time  of  the  distress  no  rent  is  due.  See  the  act, 
and  Masters  v.  Farris,  1  C.  B.  715,  (50  E.  C.  L.  R.  715,). 

^''  See,  generally,  as  to  the  proceedings  in  this  action,  and  as  to 
when  it  will  lie,  Bac.  Ab.  Replevin  and  Avoicry  ;  Selwyn's  N.  P. 
Replevin;  George  v.  Chambers,  11  M.  &  W.  149;*  and  Allen  v. 
Sharp,  2  Exch.  352. 

(a)  In  the  United  States  replevin  is  universally  begun  by  writ  as 


WRONGFUL    DISTRESS.  233 

mences,  not  like  *ordinary  actions,  by  a  writ     ^-.qq 
sued  out  of  the  superior  court ;  but  the  party    "-  -' 

whose  goods  have  been  taken  makes  plaint  in  the  court 
of  the  sheriff.^^  This  plaint  is  removed  into  the  su- 
perior court.  Pie  there  sets  forth  his  grievance,  namely, 
the  seizure  of  his  goods;  the  defendant  pleads,  or  as 
the  technical  term  is,  avows  the  right  upon  which  he 
relies  to  seize  them,  and  thus  the  title  to  distrain  is 
ultimately  tried  and  decided  on. 

This  action  of  replevin  is  as  old  as  the  law  itself, 
but  the  proceedings  in  it  have  been  much  altered  by 
modern  enactments.  At  common  law,  a  party  whose 
goods  were  distrained  sued  a  writ  out  of  Chancery 

2^  The  jurisdiction  of  the  old  county  courts  in  replevin,  in  cases  of 
distress  for  rent  and  damage  feasant,  is  now  transferred  to  the  county 
courts  constituted  under  the  9  &  10  Vic.  c.  95.  See  s.  119  of  that 
act,  and  Edmonds  v.  Challis,  7  C.  B.  413,  (62  E.  C.  L.  R.  413,). 
Actions  of  replevin  are  brought  in  the  county  courts  without  writ, 
and  these  courts  have  jurisdiction,  whatever  may  be  the  value  of  the 
goods;  2nd  Inst.  139,  312;  Pollock  on  the  County  Courts,  145; 
and  although  the  title  may  be  in  question.  Reg-  v.  Raines,  1  E.  & 
B.  855,  (72  E.  C.  L.  R  855,).  But  where  either  the  title  is  in  ques- 
tion, or  the  rent  or  damage  in  respect  of  which  the  distress  is  taken 
exceeds  20^.,  the  proceedings  are  removable  by  certiorari  into  the 
superior  courts.  See  the  9  &  10  Vic.  c.  95,  s.  121 ;  Mungean  v. 
Wheatley,  6  Esch.  88 ;  and  Stansfield  v.  Hellawell,  7  Exch.  373. 

in  other  actions.  It  requires  the  sheriff  to  deliver  the  enumerated 
articles  to  the  plaintiff,  and  to  summon  the  defendant,  so  that  he  has 
a  day  in  Court.  It  is  a  proceeding  in  personam  as  well  as  in  rem, 
and  has  a  much  wider  scope  than  belongs  to  it  in  England,  where  its 
chief  use  is  to  try  the  legality  of  a  distress.  In  the  United  States, 
on  the  contrary  it  is  quite  as  often  used  to  try  the  title  to  personal 
property.  For  further  information  on  this  subject,  and  on  the  other 
matters  treated  of  in  the  remainder  of  the  text  and  notes  to  this 
chapter,  the  reader  is  referred  to  Morris  on  Replevin. 


234  LANDLORD    AND    TENANT. 

directed  to  the  sheriff,  who  was  commanded  to  replevy 
the  goods,  that  is,  to  give  them  back  to  their  owner  ; 
and  to  take  sureties  from  him,  binding  him  to  try  the 
question  of  the  distrainer's  right  to  take  them,  and  to 
return  the  goods  if  that  question  was  decided  against 
V^,  ^  .     him.     *That  was  the  common  law:  but  it  was 

11  s+n 

"-  ^  found  extremely  inconvenient  to  send  tenants, 
perhaps  poor  ones,  to  the  Court  of  Chancery  for  writs, 
and  accordingly  by  [c.  21  of  the]  stat.  Hen.  3,  com- 
monly called  the  Statute  of  Marlebridge,  jurisdiction 
was  given  the  sheriff  to  entertain  actions  of  replevin 
in  the  first  instance;  see  Tliompson  v.  Farden^  1  M.  & 
Gr.  535,  (39  E.  C.  L.  E.  548,).  By  means  of  this 
statute  the  tenant  obtains  restitution  of  the  goods 
seized  immediately.  But  as  it  would  have  been 
unjust  to  take  the  distress  from  the  landlord  and 
leave  him  without  any  security,  the  stat.  of  West- 
minster the  2nd,  (i.  e.  13  Edw.  1,  c.  2)  requires  the 
sheriff,  when  he  restores  him  the  distress,  to  take 
security  from  him  that  he  will  prosecute  an  action 
of  replevin  against  the  distrainer,  and  return  the  dis- 
tress if  the  court  so  award.  And  this  security,  by  stat. 
11  Geo.  2,  c.  19,  s.  23,  is  directed  to  be  a  Z>o?zcZ  from 
^  the  plaintiff — that  is,  the  tenant, — with  two  re- 

'-         ^   sponsible  persons  as  sureties,"^  in  *double  the 

^^  The  sheriff  is  responsible  for  taking  insufficient  sureties,  and  is 
bound  to  use  a  reasonable  discretion  in  the  matter.  Jeffery  v.  Bas- 
tard, 4  A.  &  E.  823,  (31  E.  C  L.  R.  862,) ;  Plumer  v.  Brisco,  11 
Q.  B.  46,  (63  E.  C.  L.  R.  46,).  But  if  the  sureties  were  at  the  time 
apparently  responsible,  he  is  not  liable.  Hindle  v.  Blades,  5  Taunt. 
225,  (1  E.  C.  L.  E.  122,) ;  1  Wms.  Saund.  195  f.  This  statute 
requires  that  the  bond  shall  be  conditioned  to  prosecute  the  suit 
"  with  effect  and  without  delay."  These  words  also  form  part  of  the 
condition  of  the  bond  which  must  be  given  upon  the  removal  of  re- 
plevins from  the  county  courts  under  the  9  &  10  Vic.  c.  95,  s.  121. 


WRONGFUL    DISTRESS.  235 

value  of  the  goods  distrained ;  and  this  bond  is  assign- 
able to  the  distrainer,  contrary  to  the  usual  rule  of  the 
law  of  England,  that  clioses  in  action  are  not  assign- 
able.^" Thus  the  party  distrained,  if  he  dispute  the 
right  of  the  distrainer,  may  obtain  back  his  goods  ; 
but,  on  condition  of  bringing  an  action  of  replevin 
against  the  distrainer :  if  he  succeed  in  this  action  he 
recovers  damages,  but,  if  not,  the  judgment  is  provided 
by  stat.   17  Car.  2,  c.  7,  the  particular  enactments  of 

They  mean  that  the  suit  shall  be  prosecuted  to  a  not  nn successful  ter- 
mination. Jackson  v.  Hanson,  8  M.  &  W.  477.*  In  Morris  v. 
Crouch,  2  Q.  B.  293,  (42  E.  G.  L.  R.  681,)  a  bond  was  conditioned 
to  prosecute  the  suit  "with  effect,"  not  adding  "without  delay." 
The  distrainer  removed  the  proceedings,  and  carried  the  suit  regularly 
forward  in  the  superior  court  until  he  died.  It  was  held  that  the 
condition  was  not  broken.  See  also  Kider  v.  Edwards,  3  M.  &  Gr. 
202,  (42  E.  C.  L.  R.  112,).  The  condition  to  prosecute  the  suit, 
"  without  delay,"  may,  however,  be  broken  by  a  delay  which  does 
not  exceed  the  time  allowed  by  the  ordinary  practice  of  the  courts,  if 
the  defendant  in  replevin  be  unduly  prejudiced  by  it.  Therefore, 
where  a  plaint  was  removed  into  a  superior  court,  and  the  plaintiff 
obtained  successive  orders  for  time  to  declare,  and  did  not  declare 
until  more  than  five  months  after  the  removal,  it  was  held  that  there 
was  evidence  for  the  jury  of  a  delay  in  prosecuting  the  suit.  Gent 
V.  Cutts,  11  Q.  B.  288,  (63  E.  C.  L.  R.  288,).  Although  the  juris- 
diction in  replevin  of  the  old  county  courts  is  now  transferred  to  the 
new  courts  established  under  the  9  &  10  Vic.  c.  95,  the  sheriff  must 
still,  it  seems,  take  a  bond  pursuant  to  the  11  Geo.  2,  c.  19.  Ed- 
monds V.  Challis,  7  C.  B.  413,  (G2  E.  C.  L.  R.  413,).  The  bond 
which  is  required  by  the  County  Court  Act  before  the  proceedings 
can  be  removed,  is  to  be  given  by  the  party  removing  the  proceedings 
to  the  other  party  in  the  action,  and  is  to  be  approved  by  the  judge; 
see  s.  127  ;  but  where  a  judge,  by  mistake,  took  the  bond  to  himself, 
it  was  held  not  to  be  void.     Stansfield  v.  Hellawell,  7  Exch.  373. 

"•^  See  the  notes  to  Mounson  v.  Redshaw,  1  Wms.  Saund.  195  f. ; 
and  Austen  v.  Howard,  7  Taunt.  325,  (2  E.  C.  L.  R.  384,). 


236  LANDLORD    AND    TENANT. 

which  are  somewhat  complicated ;  hut  the  general  effect 
of  which  is,  that  the  landlord  recovers  his  rent  and 

r*i86i  '''''^';'' 

•-         -'        *The  time  will  not  permit  ns  to  go  further. 

■•^  See  the  notes  to  Mcunson  v.  Redshaw,  1  Wms.  Saund.  193  to 
195,  b.  The  11  Greo.  2,  c.  19,  s.  22,  provided  that  when  the  distress 
was  for  rent,  quit-rents,  reliefs,  heriots,  and  other  services,  and  the 
plaintiif  became  non-suit,  discontinued  his  action,  or  had  judgment 
given  against  him,  the  defendant  should  recover  double  costs.  This 
provision  has  been  altered  by  the  5  &  6  Vic.  c.  97,  s.  2,  under  which 
the  defendant  is  now  entitled,  in  these  cases,  to  receive  only  a  full 
and  reasonable  indemnity  as  to  all  costs,  charges,  and  expenses  in- 
curred in  and  about  the  action. 


POINTS     RELATING    TO     TENANCIES.      237 


*LECTURE    VII. 


[*187] 


Points  relating  to  Contixu- 
ANCE  OF  Tenancy  (contin- 
ued)   187 

Rights  of  Landlord  as  to  Re- 
pairs AND  Cultivation 188 

AYhere  no  express  Agree- 
ment     189 

Repairs,  etc 189 

Waste 190 

At  common  Law 190 

By  Statute 191 

Voluntary 192 

Permissive 192 

By  Tenants  for  Life 192 

Not  liable  for  Damage  by 

Tempest,  <fec 194 

By  Tenants  for  Years 195 

Tenants  at  Will  cannot  com- 
mit    1 97 

Accidental  Fire 198 

Where  there  is  an  express 
Agreement 199 


When  Tenant  is    bound  to 

rebuild  after  Fire 202 

Cultivation 203 

Custom  of  Country  and  ex- 
press Agreements 203 

Demise  without  Impeachment 

of  Waste 204 

Remedies    of    Landlord    for 

Non-repair,  etc 204 

By  Action 205 

By  Injunction 205 

Rights     of    Tenant     against 

Landlord 205 

Right     to    Possession    and 

quiet  Enjoyment 206 

Remedies  for  Disturbance.. .  209 
Limit  to  Landlord's  implied 
Guarantee    against    Evic- 
tion, etc 210 

Effect  of  express  Contracts 
against  Eviction,  &c 212 


After  the  time  which  has  elapsed  since  the  delivery 
of  the  last  Lecture,  it  is  right  briefly  to  recapitulate 
what  has  been  done.  I  began,  as  you  may  recollect, 
by  describing  the  different  sorts  of  tenancy.^  I  then 
divided  the  considerations  arising  out  of  the  relation 
of  landlord  *and  tenant  into  four  heads — the  ^-..qq 
first  comprising  iJiose  points  iDhicJi  relate  to  the  ■-  -■ 
commencement  of  the  tenanci/ ;  the  second,  those  lohich 
occur  during  its  continuance  ;  the  third,  those  ivhicli  relate 
to  its  termination ;  and  the  last,  those  which  arise  out  of 


^  Ante,  Lecture  I. 


238  LANDLORD    AND    TENANT. 

a  cliange  either  of  the  tenant  or  the  landlord.  Pursuing 
the  subject  in  this  order,  we  had  disposed  of  the  first 
head,  comprising  those  points  which  relate  to  the  com- 
mencement of  the  tenancy.^  We  had  entered  upon 
the  second,  and,  as  this  naturally  subdivided  itself  into 
two  considerations,  that  of  the  landlord's  rights  against 
his  tenant,  and  that  of  the  tenant'' s  rights  against  the 
landlord;  we  had  begun  with  the  former  class,  the 
principal  topic  included  in  which  being  the  landlord's 
right  to  rent,  I  had  spoken  at  some  length  on  the 
nature  of  rent,  the  time  and  the  nianner  in  which  it  is 
payable,  the  demands  which  the  tenant  sometimes  is 
entitled  to  set  oif  against  it,  the  mode  in  which  its 
payment  is  enforced,  particularly  by  distress,  to  the 
various  topics  connected  with  which  the  last  Lecture 
was  devoted.^ 

Having  thus  brought  to  a  termination  the  remarks  I 
had  to  offer  on  the  subject  of  the  rent — the  remunera- 
tion which  the  landlord  receives  for  giving  up  the  pos- 
session of  his  property  to  the  tenant,  it  remains  to 
consider  his  right  to  require  the  tenant  to  treat  that 
property  in  a  particular  manner  while  it  is  out  of  his 
^  possession.     When  *I  speak  of  the  treatment 

^  -^  of  the  property,  I  mean  in  the  way  of  upholding 
and  cidtivatiug  it.  Since  it  is  obvious,  that  if  a  house, 
it  will,  without  repairs,  go  to  decay ;  and  if  consisting 
of  land,  it  will,  if  improperly  cultivated,  lose  heart  and 
degenerate;  the  rights,  therefore,  of  the  landlord  as 
against  the  tenant,  with  regard  to  those  two  matters, 
cultivation  and  repairs,  are  of  great  practical  impor- 
tance, and  very  frequent  practical  discussion. 

In  order  clearly  to  comprehend  this  portion  of  the 
subject,  it  is  necessary  to  see  how  the  law  stands  with 

2  Ante,  Lectures  II.,  III.,  and  IV. 
^  Ante,  Lectures  V.  and  VL 


REPAIRS    AND     CULTIVATION.  239 

regard  to  it  in  the  absence  of  any  express  agreement 
of  the  parties.  Now  the  rule  of  law  is  clear  that  the 
owner  of  the  inheritance,  whether  in  fee  simple  or  in 
fee  tail,  has,  in  respect  of  the  greatness  and  durability 
of  his  interest,  a  power  to  deal  with  the  property  in 
any  manner  he  thinks  proper.  He  may  build  houses 
or  pull  them  down,  cut  timber,  oi^en  mines, — ^in  short, 
deal  with  the  property  as  he  thinks  fit.  No  action 
lies  against  him  in  a  Court  of  law,  nor  would  a  Court 
of  equity  interfere  for  the  purpose  of  restraining  him. 
All  this  is  laid  down  in  Plowd.  259;  11  Co.  50  a; 
Jervis  v.  Bruton^  2  Vern.  251 ;  and  see  The  Attorney- 
Qenercd  v.  Duke  of  Marlborough^  3  Madd.  498. 

But  though  tenants  of  an  estate  of  inheritance  have 
these  powers  in  respect  of  the  greatness  of  their  in- 
terest, it  is  otherwise  with  the  owners  of  particular 
estates.  They  are,  indeed,  entitled  to  *reason-  p^,Qp.-, 
able  estovers  and  botes,  for  the  purposes  of  fuel.,  '-  -' 
agriculture,  and  repairs  ;'  but  they  are  prohibited  from 
destroying  those  things  which  are  not  included  in  the 
temporary  profits  of  the  land,  because  that  would  tend 
to  the  permanent  and  lasting  loss  of  the  persons  entitled 
to  the  inheritance.  Any  proceeding  on  their  part 
which  contravenes  the  rules  which  govern  their  estates 

^  The  word  "estovers"  is  used  by  our  old  law  writers  in  a  very 
general  sense.  In  the  text  it  means  the  liberty  to  take  necessary 
wood  for  the  use  or  furniture  of  a  house  or  farm  off  the  estate  of 
another.  See  Co.  Litt.  41,  b.  2  Black.  Comm.  35;  Tomlin's  Law 
Diet.  Estovers.  Ilouse-bote  is  a  suflScient  allowance  of  wood  to  repair 
the  house,  or  to  burn  in  it;  in  the  latter  sense  it  is  sometimes  called 
fire-bote.  Plough-bote  and  cart-bote  are  wood  to  be  employed  in 
making  and  repairing  instruments  of  husbandry  ;  and  hedge-bote  is 
wood  for  repairing  hedges  or  fences.  2  Black.  Comm.  35;  Viner's 
Ab.  Waste  (M).  These  common  law  rights  are  now  usually  excluded 
or  regulated  by  the  express  contract  between  the  parties. 


240  LANDLORD    AND    TENANT. 

in  this  respect,  is  called  waste ;  and  as  these  rules  are 
not  precisely  similar  in  their  application  to  all  sorts  of 
particular  tenancies,  it  will  be  necessary  to  consider 
their  bearing  on  the  three  sorts  of  particular  tenancies : 

Estates  for  life ; 

Estates  for  years  ; 

And  Estates  at  will. 

I  must,  however,  first  observe,  that  at  common  law 
there  was  a  distinction  between  the  tenants  of  estates 
created  by  the  act  of  the  Jaiv,  and  tenants  of  estates 
created  by  tJie  contract  of  the  parties  ;  the  former  having 
been  always  punishable  for  committing  waste,  the  latter 
not  so.     Thus,  tenant  by  *the  curtesy,  or  in 

r  1911  . 

"-  -■  dower,  was  at  all  periods  of  the  law  restrained 
from  waste ;  tenant  for  term  of  years  was  not  so.  And 
the  reason  of  this  distinction  was,  that  it  was  thought 
it  would  be  a  hardship  if  the  law  were  to  give  the 
estate  without  restraining  the  person  to  whom  it  was 
given  from  doing  injury  to  the  inheritance ;  while  it 
was  thought  to  be  no  hardship  on  a  person  who  had 
let  a  tenant  in  by  express  contract,  and  who  had  the 
power  of  inserting  in  the  contract  stipulations  against 
the  commission  of  waste — it  was  thought  to  be  no 
hardship  upon  him  to  leave  the  tenant  in  the  same 
situation  in  which  he  had  liimself  placed  him  by  the 
contract.^     However,  this  state  of  the  law,  though  it 

5  See  also  2  Inst.  299  ;  Viner's  Ab.  Waste  (B) ;  Com.  Dig.  Waste 
(A.  2) ;  2  Wms.  Saund.  252.  Upon  the  same  principle,  where  tJie 
law  creates  a  duty  or  a  charge,  and  the  party  upon  whom  it  is  im- 
posed is  prevented  from  performing  it  without  any  defiiult  on  his 
part,  the  law  excuses  him.  But  if  the  duty  or  charge  is  imposed  hi/ 
contract  the  person  bound  is  responsible  for  a  non-performance  of  it 
caused  even  by  inevitable  accident,  Lccause  he  miijlit  have  protected 
himself  hy  his  contract.  See  Paradine  v.  Jane,  Aleyn,  27,  and 
Spence  v.  Chodwick,  10  Q.  B.  517,  (59  E.  C.  L.  R.  517,)- 


REPAIRS    AND    CULTIVATION.  241 

may  be  thus  plausibly  advocated  in  theory,  was  found 
very  detrimental  in  practice ;  and  by  the  operation  of 
two  statutes,  that  of  Marlebridge,  52  Hen,  3,  c.  23, 
which  you  will  find  set  out  and  commented  upon  in 
Lord  Coke's  2nd  Inst.  144,  and  that  of  Gloucester,  6 
Edw.  1,  c.  5,  which  you  will  find  set  out  and  com- 
mented upon  in  Lord  Coke's  2nd  Inst.  299,  all  tenants 
of  particular  estates  were    restrained  from   waste,  as 

*tenants  bv  the  curtesy,  and  in  dower,  had  been     ^,  ^ ^ 

r  1921 
previously  to  those  Acts. 

It  must  also  be  premised,  that  there  are  two  differ- 
ent descriptions  of  waste ; 

1st.    Voluntary  waste  ;  and 

2ndly.  Permissive  waste. 

Voluntary  ivaste  consists  in  doing  something  which 
the  tenant  is  prohibited  by  law  from  doing. 

Permissive  waste,  in  allowing  something  to  happen 
which  he  is  bound  by  law  to  prevent. 

Tlie  one  is  an  offence  of  commission,  the  other  of 
omission.^ 

Now  with  regard  to  tenants  for  life,  they  are  guilty 
of  voluntary  waste  if  they  fell  timber,(a)  excepting  for 

^  See  as  to  the  distinction  between  voluntary  and  permissive  waste, 
Co.  Litt.  53  a. ;  Viner's  Ab.  Waste ;  and  the  notes  to  Greene  v. 
Cole,  2  Wms.  Saund.  252  a.  As  to  the  mode  of  describing  in  plead- 
ing the  commission  of  voluntary  and  permissive  waste,  see  Martin  v. 
Gilham,  7  A.  &  E.  540,  (34  E.  C.  L.  R.  152)„and  Edge  v.  Pember- 
ton,  12  M.  &  W.  187.* 

(a)  The  American  doctrine  upon  the  subject  of  waste  by  felling 
timber  differs  materially  from  the  English.  The  circumstances  of 
the  two  countries  give  rise  to  the  differences.  In  England  timber  is 
an  object  of  extraordinary  care.  In  the  United  States,  on  the  other 
hand,  particularly  in  the  early  period  of  its  settlement,  it  was  an 
object  to  get  rid  of  timber.  It  was  therefore  said  in  one  case, 
where  a  dowress  had  cut  down  timber,  and  cleared  part  of  the  lands 

IG 


242  LANDLORD    AND    TENANT. 

the  purpose  of  their  reasonable  estovers  and  botes, — if 
they   pull   do-WTi    or   damage   houses, — if  they   open 

alloted  to  her,  that  "  it  would  be  an  outrage  on  common  sense  to 
suppose  that  what  would  be  deemed  waste  in  England  would 
receive  that  appellation  here."  «  If  the  tenant  in  dower  clears  part 
of  the  lands  assigned  to  her,  and  does  not  exceed  the  relative  pro- 
portion of  cleared  land,  considered  as  to  the  whole  tract,  she  cannot  be 
said  to  have  committed  waste  thereby."  Hastings  et  al.  v.  Crunckle- 
ton,  3  Yeates,  261.  To  cut  oak  trees  for  fire  wood  was  held  in 
Massachusetts  not  to  be  waste  in  tenant  in  dower.  But  to  cut  and 
sell  timber  trees  in  exchange  for  fire  wood  was  held  to  be  so.  Padel- 
ford  V.  Padelford,  7  Pick.  152.  Though  in  Loomis  v.  Wilbur,  the 
Court  said  it  was  not  waste  for  a  tenant  for  life  to  cut  timber  trees 
for  the  purpose  of  making  necessary  repairs  on  the  estate,  and  to  sell 
them,  and  purchase  with  the  proceeds  boards  for  such  repairs,  if  that 
was  proved  to  be  the  most  economical  way  of  making  the  repairs. 
5  Mason,  13 ;  Neel  v.  Neel,  7  Harris,  323. 

A  tenant  for  years  when  the  leased  property  is  wild  land,  covered 
with  timber,  may  clear  and  open  a  reasonable  proportion  without 
being  guilty  of  waste,  and  how  much  may  be  cut  without  waste,  is  a 
question  for  the  jury.  Jackson  v.  Brownson,  7  Johns.  227 ;  Chase 
V.  Hazelton,  7  N.  Hamp.  171;  Owen  v.  Hyde,  6  Yerg.  334; 
McCullough  V.  Irvine's  Executors,  1  Harris,  443  ;  and  it  is  a  crite- 
rion of  waste  that  the  trees  were  cut  for  the  sake  of  the  profit  on 
the  sale  of  the  timber,  and  not  for  the  purpose  of  preparing  the  land 
for  cultivation.  A  tenant  will  not  be  permitted  just  before  the 
expiration  of  his  lease  to  fell  timber  on  the  pretext  of  clearing  the 
land  for  cultivation.  Kidd  v.  Dennison,  6  Barb.  Sup.  Ct.  9 ;  Davis 
V.  Gilliam,  5  Ired.  Eq.  308 ;  Morehouse  v.  Cotheal,  2  Zab;  New  Jersey, 
521.  It  is  waste  for  an  out-going  tenant  to  remove  the  manure  made 
on  the  premises.  Lewis  v.  Jones,  5  Harris,  262.  And  in  general  the 
tenant  is  bound  to  farm  according  to  the  custom  of  the  place  where 
the  land  lies,  and  if  he  divert  the  land  from  the  usual  course  of  hus- 
bandry it  is  waste.     Jones  v.  Whitehead,  1  Parsons,  304. 

But  even  where  estates  are  unimpeachable  of  waste,  and  in  cases 
of  ornamental  timber.  Courts  of  Equity  hold  the  excessive  use  of  the 
legal  power  incident  to  the  estate  to  be  inequitable,  and  will  control 
it  by  injunction.    Marker  v.  Marker,  4  Eng.  Law  and  Eq.  Rep.  103. 


EEPAIRS    AND    CULTIVATION.  243 

mines,(a) — or  if  they  destroy  heir-looms  incident  to 
the  inheritance.     See  1  Inst.  53  a ;  Foster  v.  jSjJooner, 

(a)  Ta  Saunder's  Case,  5  Coke's  Rep.,  22,  three  points  were 
resolved. 

Ist.  "  If  a  man  hath  land  in  part  of  which  there  is  a  coal-mine 
open,  and  he  leases  the  land  to  one  for  life,  or  for  years,  the  lessee 
may  dig  in  it;  for  inasmuch  as  the  mine  is  open  at  the  time,  &c., 
and  he  leases  all  the  land,  it  shall  be  intended  that  his  intent  is  as 
general  as  his  lease  is;  scil.  that  he  shall  take  the  profit  of  all  the 
land,  and,  by  consequence,  of  the  mine  on  it,  vide  17  E.  3,  7,  a,  b. 
John  Hull's  Case,  ace;  and  so  the  doubt  in  F.  N.  B.  149  C.  well 
explained."  (See  Stoughton  v.  Leigh,  1  Taunt.  402 ;  Bourne  v. 
Taylor,  10   East.  189  ;  Whitechurch  v.  Holwerthy,  4  M.  &  S.  340.) 

2.  '<  If  the  mine  were  not  open,  but  included  within  the  bowels  of 
the  earth  at  the  time  of  the  lease  made,  in  such  case  by  leasiho-  of  the 
land,  the  lessee  cannot  make  new  mines,  for  that  shall  be  waste." 
(Viner  v.  Vaughan,  2  Beav.  466.) 

3.  "  If  a  man  hath  mines  hid  within  his  land,  and  leases  his  land, 
and  all  mines  therein,  then  the  lessee  may  dig  for  them,  for  quando 
aliquis  aliquid  concedit,  concedere  videtur,  &c.,  id  sine,  quo  res  ipsa 
esse  non  potest,  and  thcz'ewith  agrees  9  E.  4,  8,  where  it  is  said,  that 
if  a  man  lease  his  land  to  another,  and  in  the  same  there  is  a  mine, 
(which  is  to  be  intended  of  a  hidden  mine),  he  cannot  dig  for  it;  but 
if  he  lease  his  land  and  all  mines  in  it,  then  although  the  mine  be 
hidden,  the  lessee  may  dig  for  them ;  and,  by  consequence,  the  dig- 
ging of  the  mine  in  the  principal  case  was  waste  in  the  first  lessee." 
(See  Astry  v.  Ballard,  2  Lev.  185;  Whitfield  v.  Bewit,  2  P.  Wms. 
212.  But  new  shafts  may  be  opened  for  the  purpose  of  working  the 
old  mines.  Clavering  v.  Clavering,  2  P.  Wms.  388  ;   10  Pick.  460.) 

It  was  further  decided  in  this  case,  that  if  land  be  leased  in  which 
there  is  a  hidden  mine,  and  the  lessee  opens  it,  and  then  assigns  over 
his  estate,  the  assignee  cannot  dig  in  it;  and  that  if  the  lessee  in  such 
case  assigns  his  term  with  an  exception  of  the  profits  of  the  mines, 
or  the  mines  themselves,  or  of  the  timber,  trees,  &c.,  such  exception 
is  void.     (See  Doe  v.  Wood,  2  Barn.  &  Aid.  724.) 

Following  Saunder's  case,  it  was  held  in  Maryland,  in  Owings  v. 
Emery,  4  Gill.  260,  that  the  opening  a  new  mine  was  waste.  It  was 
also  held  that  a  lease  of  a   lot  or  piece   of  ground,  without   any 


244  LANDLORD    AND    TENANT. 

Cro.   Eliz.  17;   Saunders'  Case^  5  Co.  12;    Whitfield  v. 
Bewit,  2  P.  Wms.  240." 

^  See  Viner's  Ab.  Wasie  (E.)  It  is  not  waste  if  a  lessee  for 
years  cuts  down  willows,  leaving  stools  or  butts  from  which  they 
may  shoot  afi'esh,  unless  they  are  a  shelter  to  the  house,  or  a  support 
to  the  bank  of  a  stream  against  the  water.  Phillips  v.  Smith,  14  M. 
&  W.  589.*  A  good  deal  of  information  on  the  subject  of  waste 
may  be  derived  from  the  judgment  of  the  Court  in  this  case.  It  is 
there  said,  "  The  principle  on  which  waste  depends  is  well  stated  in 
the  case  of  Lord  Darcy  v.  Askwith,  Hob.  234  ;   thus,  it  is  generally 

reference  to  mines  or  quarries,  was  a  grant  simply  of  the  superfices 
of  the  soil. 

The  Statute  of  Gloucester  is  reported  by  the  judges  as  in  force  in 
Pennsylvania,  and  the  writ  of  estrepement  is  given  by  statute  to  the 
landlord  against  his  tenant,  after  notice  to  quit,  and  to  the  remainder- 
man against  tenant  for  life.  Act  29  March,  1822,  sect.  1,  7  Smith, 
520,  and  Act  10  April,  1848,  sect.  1,  Pamph.  Laws,  472.  The  last  act 
contains  the  proviso  "  that  no  tenant  or  tenants  for  life  shall  hereby 
be  restrained  from  the  reasonable  and  necessary  use  and  enjoyment 
of  the  land  and  premises  in  his,  her  or  their  possession."  An  Act  of 
2d  April,  1803,  sect.  2,4  Smith,  89,  authorised  writs  of  estrepement 
pending  actions  of  ejectment.  The  third  section  of  the  Act  27th 
March,  1833,  Pamph.  Laws,  p.  99,  declared  :  "  Quarrying  and  mining, 
and  all  such  other  acts  as  will  do  lasting  injury  to  the  premises,  shall 
be  considered  as  waste,  under  the  provisions  of  2d  section  of  the  Act 
2d  April,  1803,  "  but  made  certain  exceptions  in  the  case  of  quarries 
or  mines  which  were  opened  previous  to  the  institution  of  the  suit  for 
recovering  possession  of  the  premises.  In  Neel  v.  Neel,  7  Harris, 
324,  the  Court  held  that  where  coal  mines  had  been  opened  by  the 
devisor,  the  devisee  for  life  was  entitled  to  mine  them  to  any  extent, 
even  to  their  exhaustion,  and  that  it  made  no  difference  that  the 
devisor  had  not  mined  them  for  sale.  <'The  fact  of  his  opening  the 
pits  made  the  coal  a  part  of  the  profits  of  the  land,  and  the  right  to 
them  will  pass  as  such  by  a  devise  of  a  life  estate."  And  in  the 
subsequent  case  of  Irving  v.  Covode,  (not  yet  reported,  but  to  be 
found  in  the  Pittsburgh  Legal  Journal,  of  May  12th,  1855,  Vol.  3, 
p.  26,)  the  Court  held,  that  where  an  open  mine  existed  on  the  pre- 


REPAIRS    AND    CULTIVATION.  245 


*A  tenant   for  life    is  guilty    of  permissive 
waste,  if  he  allow  the  buildings  on  the  estate 


[*19:3] 


'o- 


true  that  the  lessee  hath  no  power  to  change  the  nature  of  the  thing 
demised ;  he  cannot  turn  meadow  into  arable,  nor  stub  a  wood  to 
make  it  pasture,  nor  di-y  up  an  ancient  pool  or  piscary,  nor  suflFer 
ground  to  be  surrounded,  nor  destroy  the  pale  of  a  park ;  nor  he 
may  not  destroy  the  stock  or  breed  of  anything,  because  it  disherits 
and  takes  away  the  perpetuity  of  succession  as  villains,  fish,  deer, 

mises,  the  tenant  for  life  was  not  limited  in  his  use  of  it  by  the 
amount  he  could  himself  extract,  but  that  he  might  sell  all  his  right 
to  a  Company,  who  might  mine  to  any  extent  that  their  capital  would 
permit,  and,  for  that  purpose,  make  new  openings,  build  railroads, 
&c.  The  Court  add,  that  such  improvements  are  not  necessarily  in- 
jurious to  the  remainder-man,  for  the  estate  is  liable  to  fall  in  at  any 
moment,  and  when  it  comes  to  him  he  takes  it  with  all  that  has  been 
added  to  develope  and  improve  it.  "When  the  lease  is  of  a  "  Coal 
Bank"  the  lessee  may  make  new  openings.  Tiley  v.  Moyers,  Supreme 
Court  Pennsylvania,  (not  yet  reported.) 

Judge  Woodward,  who  delivers  the  opinion  of  the  Court,  throws 
in  a  dictum  which  may,  perhaps,  foreshadow  the  course  of  future  de- 
cisions. <<  It  may,  indeed,  be  doubted,"  he  says,  <<  whether  the  saving 
clauses  (in  the  Act  10th  April,  1848,)  adverted  to,  do  not  empower 
him  to  open  mines  and  quarries,  that  he  may  have  reasonable  use  and 
enjoyment  of  the  premises  ;  but  this  we  do  not  decide,  as  it  is  not  in 
the  case." 

It  seems  questionable  whether  some  modification  will  not  be  re- 
quired in  this  country  of  the  rule  which  forbids  a  tenant  for  life  to 
open  a  new  mine.  There  are  numerous  untouched  hills  in  Pennsyl- 
vania unsusceptible  of  cultivation,  the  only  value  of  which  is  in  the 
coal  or  ore  beneath  them.  To  say  that  one  has  an  estate  for  life 
in  these  hills,  and  yet  that  he  cannot  touch  the  coal  or  ore,  is  to 
keep  the  word  of  promise  to  the  ear,  but  break  it  to  the  hope. 
The  distinction  between  open  and  unopen  mines  is,  to  say  the  least, 
unsatisfactory.  Why  that  use  which,  in  the  nature  of  the  land,  is 
the  true  use  of  it,  shall  not  be  made  of  it,  until  an  owner  of  the  fee 
has  begun  so  to  use  it,  it  is  not  easy  to  say.  If  it  is  in  the  nature  of 
the  property  to  be  consumed,  and  in  that  consumption  consists  its  only 


246  LANDLORD    AND    TENANT. 

to  decay ;  *tliouoli  it  is  laid  down,  that  if  he 
^         -^    find   a  house    ruinous    when   his    estate  com- 

young  spring  of  woods,  or  the  like.  .  .  .  On  the  other  band,  those 
acts  are  not  waste  which,  as  Richardson,  C.  J.,  in  Barrett  v.  Barrett, 
Hetley,  35,  says,  are  not  prejudicial  to  the  inheritance,  as,  in  that 
case,  the  cutting  of  sallows,  maples,  beeches,  and  thorns,  there 
alleged  to  be  of  the  age  of  thirty-three  years,  but  which  were  not 
timber  either  by  general  law,  or  particular  local  custom.  So,  like- 
wise, cutting  even  oaks  or  ashes,  where  they  are  of  seasonable  wood, 
{.  e.,  where  they  are  cut  usually  as  underwood,  and  in  due  course  are 
to  grow  up  again  from  the  stumps,  is  not  waste."  See  also  Com. 
Dig.  Chase  (N).  In  Huntley  v.  Russell,  18  Q.  B.  572,  (66  E.  C. 
L.  R.  572,)  an  action  upon  the  case  for  dilapidations  was  brought  by 
a  rector  against  the  executors  of  his  predecessor  in  the  rectory.  It 
appeared  that  the  deceased  rector  had  suffered  a  farm-building  adjoin- 
ing the  rectory -house  to  go  into  decay,  but  had  erected  a  building 
better  fitted  for  the  purpose  at  the  distance  of  a  mile  from  the  house, 

value,  the  reasoning  of  the  first  resolve  in  Saunder's  case  is  strictly 
applicable.  If  this  is  too  great  an  innovation,  perhaps  a  feasible  and 
just  arrangement  would  be,  to  allow  the  tenant  for  life  to  open  and 
work  mines — the  proceeds  thereof,  after  paying  the  expenses  of  the 
opening,  to  become  capital,  and  be  invested ;  the  interest  on  such 
investments  to  belong  to  the  tenant  for  life,  and  the  principal,  at 
his  death,  to  the  owner  of  the  reversion.  In  the  case  of  Hollings- 
head  v.  Allen,  5  Harris,  281,  Judge  Rogers,  in  charging  the  jury, 
at  Nisi  Prius,  says :  "  Can  it  be  the  law  of  this  country,  that  where 
valuable  mines  are  discovered,  whether  of  coal,  iron  ore,  valuable 
sand,  gold,  or  silver,  they  cannot  be  touched  by  a  tenant  for 
life,  without  forfeiture  of  his  interest,  and  subjecting  himself  to 
heavy  damages,  under  the  Statute  of  Gloucester  ?  I  charge  you, 
gentlemen,  that  such  is  not  the  law,  although  it  is  a  nice  point. 
But  can  the  tenant  for  life  pocket  all  the  profits  made  by  a  sale  of 
the  soil  itself,  which  is  part  of  the  inheritance,  or  is  he  obliged  to 
account  for  the  profits,  to  the  owner  of  the  fee  ?  On  this  point  I 
have  no  difficulty.  The  tenant  must  account  to  the  tenant  in  fee  for 
all  the  profits  made  by  the  sale  of  the  same."  In  the  Supreme  Court 
these  points  were  not  mentioned. 


REPAIRS    AND    CULTIVATION.  247 

mences,  he  may  permit  it  to  fall  down, — though  he 
might  justify  the  taking  reasonahle  estovers  of  timber 
from  the  estate  for  repairing  it.  (See  1  Inst.  53  a; 
54  b.)  And,  I  apprehend,  that  on  the  same  principles, 
if  the  tenant  for  life  were  to  allow  the  walls,  banks, 
and  defences  of  the  estate  to  become  ruinous,  he  would 
be  guilty  of  permissive  waste ;  thus  it  is  laid  down  by 
several  authorities,  that  if  the  property  be  on  the  bank 
of  a  river,  which  flows  so  gently  that  by  reasonable 
industry  its  banks  may  be  preserved,  it  would  be  waste 

but  in  a  situation  more  convenient  for  the  farming  business.  No 
faculty  or  license  had  been  obtained  for  the  alteration.  The  deceased 
rector  had  also  removed  a  cottage,  or  farm-building,  which  had  been 
placed  upon  the  soil,  and  had  been  intended,  at  the  time  of  the  erec- 
tion, to  be  removable  at  will,  but  which  had  become  imbedded  in 
the  ground  to  the  depth  of  a  foot  by  the  mere  weight  of  the  building. 
It  was  held  that  neither  of  these  acts  amounted  to  waste  or  dilapida- 
tion. Mr.  Justice  Patteson,  in  delivering  the  judgment  of  the 
Court,  said,  "  The  incumbent  of  a  rectory  is  not  precisely  in  the  situ- 
ation of  a  particular  tenant,  because  there  is  no  person  who  has  the 
inheritance  in  reversion ;  but  the  fee  simple  of  the  glebe  being  in 
abeyance,  the  incumbent  is  in  truth  but  tenant  for  life ;  and  he  or 
his  executors  are  no  doubt  liable  for  any  waste  committed.  But  to 
constitute  waste  there  must  be  either,  first,  a  diminishing  of  the  value 
of  the  estate,  or,  secondly,  an  increasing  the  burthen  upon  it,  or, 
thirdly,  an  impairing  the  evidence  of  title.  Doe  d.  Grubb  v.  Lord 
Burlington,  5  B.  &  Ad.  507,"  (27  E.  C.  L.  K.  217,).  In  the  same 
case,  some  gravel  pita  on  the  soil  of  the  rectory,  which  had  been 
opened  by  the  surveyors  of  the  highways,  under  the  Highway  Acts, 
had  been  improperly  left  open  by  them.  A  lessee  of  the  deceased 
rector  had  taken  gravel  from  them,  and  had  sold  it  to  private  persons. 
The  Court  held  that  the  opening  of  the  pits  having  arisen  from  a 
public  necessity  only,  and  their  continuing  open  having  been  caused 
only  by  the  omission  of  a  public  duty,  the  deceased  rector  had  no 
right  to  consider  that  they  were  open  for  all  purposes,  and  therefore 
that  the  removal  of  the  gravel  by  his  lessee  amounted  to  an  act  of 
waste,  as  much  as  if  the  pits  bad  been  opened  by  him  for  the  purpose 
of  sale. 


248  LANDLORD    AND    TENANT. 

in  tlic  lessee  for  life  to   suffer  tliem  to  fall  into  decay. 
See  1  Inst.  53  b.' 

It  must,  however,  be  observed,  that  these  doctrines 
regarding  permissive  waste  do  not  apply  to  cases  in 
which  the  damage  happens  from  the  act  of  God,  as  it  is 
called,  that  is,  from  some  inevitable  and  irresistible 
convulsion  of  nature ;  thus,  if  a  house  were  thrown 
down  by  the  violence  of  tempest,  or  consumed  by 
lightning,  the  tenant  could  not  be  made  liable  for  this 
as  waste ;  though  it  is  said,  that  if  the  roof  only  were 
blown  off,  he  would  *be  bound  to  cover  it 
■-  '  -^  again  within  a  reasonable  time.  See  2  Roll. 
Ab.  820.XtO 

^  Viner's  x\b.   Waste  (I). 

^  See  Vinejj's  Ab.  Waste  (I.)  But  if  the  house  was  burnt  by 
negligence  or  mischance  it  was  waste,  before  the  6  Anne,  c.  31,  ib.  ; 
and  Co.  Litt.  53  b.  It  will  be  observed  that  the  exception  to  the 
general  rule  as  to  permissive  waste  which  is  mentioned  in  the  test,  is 
limited  to  cases  in  which  the  injury  is  caused  by  some  inevitable  and 

[a)  This  exception  was  extended  in  Pennsylvania  to  damage  by 
public  enemies.  In  a  case  in  which  there  was  an  express  covenant 
to  keep  the  demised  premises  in  good  repair,  and  to  deliver  them  up 
at  the  end  of  the  term  in  such  good  repair,  &c.,  the  defendant  pleaded 
that  an  alien  enemy,  to  wit.,  the  British  army,  commanded  by  Genera} 
Sir  William  Howe,  on  the  1st  of  September,  1777,  had  invaded  the 
City  of  Philadelphia,  had  taken  possession  of  the  premises,  and  held 
the  same  until  the  end  of  the  term,  and  afterwards;  and  that  during 
the  period  they  held  posses.sion  they  had  committed  the  waste  and 
destruction,  &c.  Chief  Justice  McKean  delivered  an  elaborate 
opinion — concluding  that  the  defendant  ought  to  pay  the  rent, 
because  of  his  express  covenant  to  pay  it,  but  that  he  should  be 
excused  from  his  covenant  to  deliver  up  the  premises  in  good  repair ; 
because  a  covenant  to  do  this  against  an  act  of  God  or  an  enemy 
ought  to  be  special  and  express,  and  so  clear  that  no  other  meaning 
could  be  put  upon  it.  Pollard  v.  ShaeffoT,  1  Dallas,  210.  See 
Magaw  V.  Lambert,  3  Barr,  444. 


REPAIRS    AND     CULTIVATION,  249 

Thus  much  on  the  subject  of  waste  by  tenants  for 
life :  now  with  regard  to  tenants  for  years,  and  at  will. 
With  regard  to  voluntary  waste,  a  tenant  for  years,  or 
at  will,  stands  in  the  same  situation  precisely  as  a 
tenant  for  life ;  indeed  it  is.  obvious  to  common  sense, 
that  what  the  owner  of  a  freehold  interest  is  prohibited 
from  doing,  the  owner  of  a  chattel  interest  must  be 
equally  prohibited  from/*^ 

With  regard  to  permissive  waste,  the  liabilities'  of 
the  tenant  of  a  chattel  interest  seem  less  than  those  of 
a  tenant  for  life  of  the  freehold.  A  tenant  from  year 
to  year,  clearly  according  to  the  latest  authorities,  is 
bound  to  do  no  more  than  keep  the  house  wind  and 
water  tight.  (See  Auwoiili  v.  *  Johnson^  5  C.  ,  5^-,  (^^ 
Sc  P.  239,  (24  E.  C.  L.  K  545,);  Leach  v.  ^  ^^^ 
Thomas,  7  C.  &  P.  327,  (32  E.  C.  L.  Pt.  638.)^^     With 

irresistible  convulsion  of  nature.  For,  if  the  damage,  although  im- 
mediately caused  by  the  violence  of  a  tempest,  might  have  been 
avoided  by  a  reasonable  amount  of  previous  precaution  on  the  part  of 
the  tenant,  it  would  seem  that  he  is  liable.  Therefore  if  the  lessee 
suffers  a  little  breach  in  the  icall  to  continue,  by  means  of  which  the 
violence  of  the  sea  afterwards  breaks  all  the  wall  and  surrounds  the 
land,  this  appears  to  be  waste.  Anon.  Moo.  62;  see  also  Reg.  v. 
Leigh,  10  A.  &  E.  398,  (37  E.  C.  L.  R.  122,).  It  must  be  recol- 
lected that  the  observations  in  the  text  relate  only  to  the  liability  of 
the  tenant  for  waste  in  the  absence  of  any  express  contract  in  this 
respect;  since  it  is  clear  that,  if  he  enter  into  an  expresS^-contract 
without  exception  or  qualification,  he  is  liable,  although  the  damage 
may  be  caused  by  inevitable  accident.  Paradine  v.  Jane,  Alleyn,  27, 
ante,  p.  191,  note  ^  i°  Viner's  Ab.   Waste  (S). 

'^  So,  on  the  other  hand,  the  landlord  of  a  tenant  from  year  to 
year  is  not,  in  the  absence  of  any  express  contract,  under  any  obliga- 
tion to  repair  the  premises.  Gott  v.  Gandy,  2  E.  &  B.  847,  (75  E. 
C.  L.  R.  847,) ;  nor  is  there  any  implied  duty  on  the  owner  of  a 
house  which  is  in  a  ruinous  and  unsafe  condition  to  inform  a  proposed 
tenant  that  it  is  unfit  for  habitation.  Keates  v.  The  Earl  of  Cado- 
gan,  10  C.  B.  .591,  (70  E.  C  L.  R.  591,). 


250  LANDLORD    AND    TENANT. 

regard  to  tenants  for  terms  of  years,  there  is  a  great 
paucity  of  authorities  upon  the  question  how  far  their 
habihty  in  respect  of  permissive  waste  extends,  in  the 
absence  of  any  express  agreement  on  the  subject. 
The  reason  of  this  paucity  of  information  is,  that  in 
practice  a  case  rarely,  if  ever,  occurs,  in  w^hich  it  is 
necessary  to  inquire,  what  the  general  law  is  on  the 
subject:  for  every  lease  of  any  importance  contains 
sti^bulations  upon  the  subject  of  repairs,  and  where 
those  are  inserted  they  supersede  the  law,  as  it  would 
stand  without  them;  and  of  course,  therefore,  the 
question  what  that  law  is  in  the  absence  of  express 
stiprdation,  rarely  if  ever  occurs.  They  certainly  seem 
to  be  placed  by  Littleton,  s.  67,  and  by  Lord  Coke  in 
his  Commentary  (Co.  Litt.  53,)  in  the  same  situation, 
in  this  respect,  as  tenant  for  life.  And  it  is  clear  from 
Lord  Coke's  Commentary  on  the  stat.  of  Gloucester, 
2nd  Inst.  298,  [299,  302]  that  the  old  action  of  waste 
given  by  that  statute,  would  have  lain  against  a  tenant 
for  term  of  years.  But  it  has  been  questioned  by 
some  recent  authorities,  whether  an  action  on  the  case 
for  permissive  waste  lies  against  a  tenant  for  years  at 
all.     (See  Gibson  v.  *  Wells,  1  New.  Rep.  390  ; 

r  1971  • 

■-  -^  Heme  v.  Bemhmo,  4  Taunt.  764 ;  Jones  v.  Hill, 
7  Taunt.  392,  (2  E.  C.  L.  R.  4U,)  -P  and  if  this  be  the 
case,  tjjen  as  the  old  writ  of  waste  has  been  abolished 
by  Lord  Lyndhurst's  Act,^^  the  consequence  would  be 

^2  A  tenant  for  years  appears  to  be  liable  for  permissive  waste. 
Hartnett  v.  Maitland,  16  M.  &  W.  257.* 

13  See  the  3  &  4  Wm.  4,  c.  27,  s.  36.  Even  before  this  act 
abolished  the  writ  of  waste,  the  old  action  of  waste  had  fallen  almost 
into  disuse,  in  consequence  of  the  adoption  of  the  more  expeditious 
and  easy  remedy  of  an  action  on  the  case  in  the  nature  oficaste.  See 
2  Wms.  Saunders,  252,  note  ^.  The  Courts  of  Common  Law  have 
now  the  power  of  granting  writs  of  injunction  to  restrain  waste;   a 


REPAIRS    AND    CULTIVATION.  251 

that  the  liability  of  a  tenant  for  years  would,  in  the 
absence  of  express  agreement,  be  just  the  same  as  that 
of  a  tenant  from  year  to  year,  and  no  greater.  Upon 
the  whole  the  law  upon  this  subject  is  somewhat  un- 
settled, and  I  am  loth  to  dwell  upon  it,  because  it  so 
seldom  comes  into  question  in  practice ;  if  you  wish  to 
pursue  the  inquiry,  you  may  peruse  the  notes  to  Greene 
V.  Cole,  2  Wms.  Saund.  252.(a) 

"With  regard  to  a  tenant  strictly  at  will,  it  is  laid 
down  by  Littleton,  s.  71,  that  he  cannot  commit  waste 
at  all,  for  he  is  not  liable  for  permissive  waste  because 
of  the  weak  and  uncertain  nature  of  his  holding,  which 
would  render  it  a  hardship  to  compel  him  to  go  to  any 
expense  for  repairs.^*  *And  as  to  voluntary  ^^^^^^ 
waste,  as  I  have  already  explained  to  you,  that  •-  ^ 
any  act  incompatible  with  his  interest  determines  it,^^  it 

remedy  which  was  formerly  confined  to  Courts  of  Equity.  See  s.  79 
of  the  Common  Law  Procedure  Act,  1854,  17  &  18  Vic.  c.  125. 

"  See  Harnett  v.  Maitland,  16  M.  &  W.  257.*  In  this  case  the 
declaration  alleged  that  the  defendant  held  premises  as  tenant  to  the 
plaintiifs  under  a  demise  made  by  the  plaintiffs  to  the  defendant,  the 
reversion  thereof  belonging  to  the  plaintiffs,  and  that  by  reason  of 
the  tenancy  it  was  the  duty  of  the  defendant  to  use  the  premises  in 
a  tenant-like  and  proper  manner,  and  not  to  permit,  or  to  commit 
waste  thereto.  The  breach  alleged  was,  that  the  defendant  suffered 
and  permitted  the  premises  to  become  waste  and  ruinous.  The  Court 
held  that  the  declaration  was  bad  in  substance,  since  it  did  not  show 
that  the  defendant  was  more  than  a  mere  tenant  at  will,  and  a  tenant 
at  will  is  not  liable  for  permissive  waste. 

1^  Ante,  p.  17. 

(a)  It  is  held  in  several  American  cases  that  if  there  be  no  stipu- 
lation whatever  on  the  subject  in  the  lease,  the  tenant  is  bound  to 
keep  the  premises  in  repair.  Long  v.  Fitz  Simmons,  1  Watts  & 
Serg.  530 ;  Cornell  v.  Vanartsdalen,  4  Barr,  373  ;  City  Council  v. 
Moorhcad,  2  Rich.  430.  See  Cleves  v.  Willoughby,  7  Hill,  83; 
Mumford  v.  Brown,  6  Cowen,  475. 


252  LANDLORD    AND    TENANT. 

follows  that  an  act  done  by  liim,  which  if  done  by  a 
tenant  for  years  would  amount  to  voluntary  waste,  puts 
an  end  to  the  estate  at  will  altogether  and  renders  him 
a  trespasser,  so  that  he  is  liable  to  an  action  of  tres- 
pass, not  to  one  upon  the  case. 

There  is  one  species  of  injury  to  the  premises,  from 
liability  for  which  the  tenant,  whether  for  life  or  years, 
is  exempted  by  an  express  provision  of  the  legislature : 
I  mean  the  stat.  6  Anne,  c.  31,  s.  6,  rendered  perpetual 
by  the  stat.  10  Anne,  c.  14,  and  which  pro^ddes  that 
no  "  action  shall  be  maintained  against  any  person  in 
whose  house  or  chamber  any  fire  shall  accidentally 
begin :"  but  this  act  contains  an  exception  of  all  ex- 
press agreements  between  the  landlord  and  tenant.^^(a) 

1^  The  6  Anne,  c.  31,  was  repealed  by  the  12  Geo.  3,  c.  73,  s.  46, 
and  the  last-mentioned  act  -was  repealed  by  the  old  IMetropolitau 
Buildings  Act,  the  14  Geo.  3,  c.  78,  s.  101,  which  provided,  however, 
that  the  6  Anne,  c.  31,  should  not  be  revived.  The  14  Geo.  3,  c. 
78,  contains  a  provision  on  this  subject,  which  is  wider  than  that 
which  was  contained  in  the  Statute  of  Anne,  and  which  is  still  in 
force.  It  enacts  that,  <'  no  action,  suit,  or  process  whatever  shall  be 
had,  maintained,  or  prosecuted  against  any  person  in  whose  house, 
chamber,  stable,  ham,  or  oilier  huilding,  or  on  ichose  estate  any  fire  shall 
accidentally  begin."  See  s.  86.  The  Metropolitan  Buildings  Act  now 
in  operation  (the  7  &  8  Vic.  c.  84)  has  repealed  the  greater  portion  of 
the  14  Geo.  3,  c.  78,  but  has  left  this  section  unrepealed,  see  Sched- 

(a)  The  language  of  Lord  Denman,  in  Filliter  v.  Phippard,  11 
Add.  &  Ellis,  U.  S.,  &c.,  354,  (63  E.  C.  L.  K.  353,)  is  this :  "  The 
ancient  law  or  custom  of  England,  appears  to  have  been  that  a  person 
in  whose  house  a  fire  originated,  which  afterwards  spread  to  his  neigh- 
bour's property  and  destroyed  it,  must  make  good  the  loss.  And  it 
is  well  established  that,  when  the  fire  was  occasioned  by  a  servant's 
negligence,  the  owner,  the  master  of  the  house  where  it  began,  is 
answerable  for  the  consequences  to  the  sufferer.  And  the  case  of 
Turberville  v.  Stamp,  1  Comyn's  Rep.  32,  S.  C.  1  Salk,  13— the  last 
decided  before   the  statute  6    Ann.  c.    31 — makes   this  plain,  and 


REPAIRS    AND    CULTIVATION.  253 

*Such  is  tlie  state  of  the  law  in  the  absence 

r  1991 
of  any  express  agreement  between  the  parties ;    ^         -^ 

ule  A.  It  has  been  held  that  this  clause  is  general  in  its  operation, 
and  is  not  confined  to  the  districts  to  which  the  ordinary  provisions  of 
the  14  Geo.  3,  c.  "78,  applied.  See  Richards  v.  Easto,  15  M.  &  W. 
244*,  and  Fiiliter  v.  Phippard,  11  Q.  B.  347,  (63  E.  C.  L.  R.  347,). 
There  has  been  some  difference  of  opinion  as  to  the  meaning  of  the 
words,  '<  shall  accidenUxlly  hegin."  It  appears  from  some  expressions 
made  use  of  by  Sir  William  Blackstone,  in  his  Commentaries,  that 
he  thought  that  the  word  accidental  was  used  in  the  Statute  of  Anne 
in  contradistinction  to  the  term  wilfid,  and  that  it  included  the  case 
of  a  fire  caused  by  negligence,  so  that  the  owner  of  a  dwelling-house 
was  protected  by  that  act  agiinst  responsibility  in  respect  of  a  fire 
originating  in  his  own  negligence  or  in  that  of  his  servant.  See  1 
Black.  Comm.  431,  and  the  remarks  of  Lord  Lyndhurst  «pon  this 
passage  in  Viscount  Canterbury  v.  The  Attorney  General,  1  Phill. 
315.  In  Filliter  v.  Phippard,  however,  it  was  held  by  the  Court  of 
Queen's  Bench  that  s.  86  of  the  14  Geo.  3,  c.  78,  does  not  apply 
where  a  fire  is  caused  by  negligence.  And  in  the  same  case  the  Court 
appeared  to  be  of  opinion  that  this  statute  does  not  estend  to  cases  in 
which  a  fire  is  lighted  intentionally,  and  mischief  results  from  it. 
And  in  A^aughan  v.  Menlove,  4  Scott,  244,  it  was  held  that  an  action 
upon  the  case  might  be  supported  against  a  person  who  negligently 
kept  on  his  premises  a  stack  of  hay  so  put  together  as  to  be  likely  to 
ignite,  and  which  did  ignite  and  caused  injury  to  the  adjoining  build- 
ings. It  must,  however,  be  observed,  that  in  the  last  mentioned  case 
the  attention  of  the  Court  was  not  called  to  the  14  Geo.  3,  c.  78. 


declares  the  same  principle,  when  the  fire  originates  in  the  defend- 
ant's close." 

Lord  D.  then  discusses  the  question  whether  the  word  "  accident- 
ally," used  in  the  English  statutes,  includes  fires  arising  from  care- 
lessness, and  is  of  opinion  that  it  does  not,  and  that  Blackstone's 
remarks  upon  this  subject  are  erroneous. 

There  appear  to  be  no  statutes  on  the  subject  in  America,  1  Reed's 
Penn'a  Black.  213,  except  the  New  York  statute,  quoted  below, 
which  is  conceived  in  an  entirely  different  spirit. 

The  cases  decided,  however,  seem  to  view  the  law  as  Lord  Dcnman 


254  LANDLORD    AND     TENANT. 

but,  as  I  have  already  said,  in  almost  every  case  in 
which  the  term  is  of  importance,  provision  is  made  on 

did,  with  the  exception,  perhaps,  that  they  would  qualify  the  state- 
ment "  that  a  person  in  whose  house  a  fire  originates,  which  afterwards 
spreads  to  his  neighbour's  property  and  destroys  it,  must  make  good 
the  loss,"  by  adding,  if  the  fire  arose  from  his  negligence  or  careless- 
ness. Thus  the  American  cases  seem  to  have  held  the  common  law 
sufficient  to  protect  the  person  on  whose  premises  the  fire  originated, 
to  the  extent  of  the  protection  afforded  in  England  by  the  statute  as 
read  by  Lord  Den  man. 

In  Barnard  v.  Poor  the  action  was  case,  charsinjj  the  defendant 
with  carelessly  and  negligently  setting  a  fire  on  his  own  lands,  by 
which  a  quantity  of  wood  on  adjoining  lands  was  destroyed.  Chief 
Justice  Shaw  said  :  "  The  Court  are  of  opinion  that,  in  this  action, 
it  is  immaterial  whether  the  proof  establishes  gross  negligence,  or 
only  want  of  ordinary  care,  on  the  part  of  the  defendant.  In  either 
case,  the  plaintiffs  would  be  entitled  to  recover  in  damages  the 
actual  amount  of  loss  sustained,  and  no  more,  in  the  form  of  vindic- 
tive damages,  or  otherwise."     Barnard  v.  Poor,  21  Pick.  378. 

Maull  V.  Wilson,  2  Harrington,  443.  The  action  was  case  for 
carelessly  carrying  fire,  whereby  plaintiff's  stack  yard  was  destroyed. 
The  Court  charged  the  jury,  that  if  the  fire  were  wilfully  and  di- 
rectly thrown  on  the  hay,  this  action  could  not  be  maintained  ;  that 
if  the  fire  arose  from  mere  accident,  without  any  negligence  on  the 
part  of  defendants,  they  were  not  liable.  If  the  fire  was  occasioned 
by  the  carelessness  and  negligence  of  defendants,  they  were  answerable 
to  the  full  value  of  the  property  destroyed. 

Clark  V.  Foot,  8  Johns.  421.  Clark  sued  Foot  to  recover  damages 
sustained  by  Foot's  setting  fire  to  the  plaintiff's  woods.  The  evidence 
was,  that  the  defendant's  servant,  by  defendant's  orders,  set  fire  to 
certain  fallow  ground  belonging  to  the  defendant,  which  fire  ran  into 
the  plaintiff's  woodland. 

The  Court  said  :  <'  The  point  to  be  tried  was,  whether  there  was 
negligence  on  the  part  of  Foot  or  his  agent ;  for  Foot  was  as  much 
accountable  for  the  negligence  of  his  servant,  whilst  employed  in  his 
business,  as  if  the  fire  had  spread  by  his  own  neglect. 

"It  is  a  lawful  act  for  a  person  to  burn  his  fallow;  and  if  his 
neighbour  is  injured  thereby,  he  will  have  a  remedy  by  action  on  the 


REPAIRS    AND     CULTIVATION.  255 

the  subject  by  express  stipulation,  generally  in  the 
shape  of  a  covenant  to  repair  inserted  in  the  lease. 

Now  with  regard  to  these  express  covenants  they  of 
course  differ  much,  according  to  the  nature  of  the  de- 
mised property.  And  as  the  construction  *put  ^^ 
upon  them  varies  according  to  the  varying  terms  '-  -^ 
employed  in  framing  them,  it  would  be  tedious  and 
almost  useless,  to  enter  on  an  enumeration  of  the  exact 

case,  if  there  be  sufficient  ground  to  impute  the  act  to  the  negligence 
or  misconduct  of  the  defendant  or  his  servants. 

"  Should  a  man's  house  get  on  fire,  without  his  neglect  or  default, 
and  burn  his  neighbour's,  no  action  would  lie  against  him,  notwith- 
standing the  fire  originated  in  his  house,  because  it  was  lawful  for 
him  to  keep  the  fire  there."     S  El.  Com.  43 ;  Noy's  Mox.  c.  44. 

The  Kevised  Statutes  of  New  York,  (1  R.  S.  696,  §1,)  provide 
that  "  any  person  negligently  setting  fire  to  his  own  woods,  or  negli- 
gently suffering  a  fire  kindled  upon  his  own  wood  or  fallow  land,  to 
extend  beyond  his  own  land,  shall  forfeit  treble  damages  to  the  party 
injured  thereby."     Lawyer  v.  Smith,  1  Denio,  207. 

If  the  tenant  covenants  to  deliver  the  premises  in  good  repair,  he 
must  protect  himself  by  exceptions  in  his  lease,  if  he  wishes  to  avoid 
liability  to  rebuild  in  case  the  premises  are  burned.  In  the  absence 
of  a  covenant  to  repair,  it  is  said  he  is  not  liable  to  rebuild  if  the 
premises  are  burned,  but  he  must  pay  the  rent.  Magaw  v.  Lambert, 
3  Barr,  444;  Long  v.  Fitzsimmons,  1  W.  &  S.  530;  Warner  v. 
Hitchins,  5  Barb.  666 ;  Cook  v.  Champlain  Trans.  Co.  1  Denio,  91 ; 
Huston  V.  Springer,  2  Bawle,  100;  Cline  v.  Black,  4  McCord,  431 ; 
Beach  v.  Grain,  2  Comst.  86. 

It  was  decided  in  Stockwell  v.  Hunter,  11  Met.  448,  that  a 
demise  of  the  basement  rooms  of  a  building  of  several  stories  in 
height,  without  any  stipulation,  by  lessor  or  lessee,  for  rebuilding  in 
case  of  fire  or  other  casualty,  gives  the  lessee  no  interest  in  the  land, 
though  he  pays  all  the  rent  in  advance ;  and  if  the  whole  building  is 
destroyed  by  fire,  his  interest  in  the  rooms  is  terminated,  and*  the 
lessor  may  re-enter  for  the  purpose  of  rebuilding,  without  being 
chargeable  for  an  eviction.  Alexander  v.  Dorsey,  12  Goo.  12.  Kerr  v. 
Merchant's  Ex.  Co. ;  3  Edw.  c.  315  ;  Winter  v.  Cornish,  5  Ohio,  477. 


256  LANDLORD    AND     TENANT. 

words  on  wliich  constructions  have,  at  various  times, 
been  put  by  the  Court,  and  the  best  plan  \\d\l  be  to 
cite  some  of  the  cases  which  seem  to  me  best  to  illus- 
trate the  spirit  in  which  the  Courts  are  in  the  habit  of 
reading  them.  You  may  see  Harris  v.  Jones,  1  IMoo.  & 
Eob.  173;  Doe  d.  Bolton  v.  Jones,  4  B.  &  Ad.  126, 
(24  E.  C.  L.  R.  64,) ;  Gutteridge  v.  Munyard,  7  C.  & 
P.  129,  (32  E.  C.  L.  Pt.  534,);  BurdettY.  Withers,  7  A. 
&  E.  136,  (34  E.  C.  L.  P.  57,);  Stanley  v.  Toiogood,  3 
Bing.  N.  C.  4,  (32  E.  C.  L.  P.  13.)^'     I  have  already 

^^  These  cases  establisli  that  where  there  is  a  general  covenant  to 
repair,  the  age  and  general  condition  of  the  house  at  the  commence- 
ment of  the  tenancy  are  to  be  taken  into  consideration  in  considering 
whether  the  covenant  has  been  broken  ;  and  that  a  tenant  who  enters 
upon  an  old  house  is  not  bound  to  leave  it  in  the  same  state  as  if  it 
were  a  new  one.  They  show  that  the  meaning  of  the  expression 
"  good  repair"  has  relation  to  the  age  of  the  building,  and  is  different 
with  respect  to  old  and  to  new  premises.  See  the  cases  and  the  ob- 
servations of  Baron  Parke  in  Hart  v.  Windsor,  12  M.  &  W.  77.*  See 
also  Mantz  v.  Goring,  4  Bing.  N.  C.  451,  (33  E.  C.  L.  R.  409,).  But, . 
where  a  tenant  covenants  to  Jceep  the  premises,  and  to  deliver  them 
up  at  the  expiration  of  the  tenancy  in  good  repair,  order,  and  condi- 
tion, he  is  bound  to  put  them  into  good  repair,  and  is  not  justified  in 
keeping  them  in  bad  repair,  because  he  found  them  in  that  condition. 
Even  in  this  case,  however,  the  extent  of  the  repairs  is  to  be  measured 
by  the  age  and  class  of  the  buildings.  Payne  v.  Haine,  16  M.  &  W. 
541.*  It  is  said  in  Ptolle's  Abridgment,  that  if  a  lessee  covenants 
to  repair,  ^'provided  always,  and  it  is  agreed  that  the  lessor  shall  find 
great  timber,"  this  is  a  covenant  on  the  part  of  the  lessor  to  find  the 
timber  by  reason  of  the  word  agreed,  and  not  a  qualification  of  the 
covenant  of  the  lessee;  but  that  if  this  word  is  omitted,  the  proviso 
is  merely  a  qualification  of  the  lessee's  covenant.  1  Pioll.  Ab.  518, 
Covenant  (C).  In  a  recent  case,  however,  where  a  lessee  covenanted 
to  repair  the  demised  premises,  the  farm-liouse  and  huildings  being 
previously  pxU  in  repair  and  kepA  in  repair  by  the  landlord,  it  was 
held  that  these  words  amounted  to  an  absolute  and  independent  cove- 
nant on  the  part  of  the  landlord  to  put  the  premises  in  repair.     Can- 


EXPRESS    AGREEMENT.  257 

*observed  that  the  statute  of  Anne  exempts     ^ 
tenants  from  the  consequences    of  accidental   '-         -" 

nock  V.  Jones,  3  Exch.  233.  See  also  Neale  v.  Ratcliff,  15  Q.  B. 
916,  (69  E.  C.  L.  R.  916,)  and  Hunt  v.  Bishop,  8  Exch.  675,  in  the 
first  of  which  cases  a  tenant  covenanted  to  keep  the  demised  premises 
in  repair,  the  scane  heivg  first  put  into  repair  hy  the  landlord,  and  it 
was  held  that  the  repairing  by  the  landlord  was  a  condition  precedent 
to  the  obligation  on  the  tenant  to  keep  the  premises  in  repair.  It 
often  happens  that  leases  contain  a  general  covenant  to  repair,  and 
also  a  covenant  to  repair  within  a  certain  time  after  notice.  These 
covenants,  as  usually  framed,  are  construed  to  be  separate  and  inde- 
pendent covenants,  and  the  one  is  not  held  to  qualify  the  other.  See 
Wood  V.  Day,  7  Taunt.  645,  (2  E.  C  L.  E.  580,).  Doe  d.  Morecraft 
V.  Meux,4  B.  &  C.  606,  (10  E.  C.  L.  R.  722,)  and  Horsefall  v.  Testar, 
7  Taunt.  385,  (2  E.  C.  L.  R.  411,).  It  must  be  observed  that  there 
is  no  implied  contract  to  use  the  premises  in  a  tenant-like  manner,  where 
the  tenant  expressly  contracts  to  repair.  Standen  v.  Chrismas,  10  Q  B. 
135  5  (59  E.  C  L.  R.  135.)  Questions  often  occur  in  practice  as  to  the 
amount  of  the  damages  recoverable  by  the  landlord  upon  a  covenant  to 
repair  when  the  term  is  unexpired  at  the  time  when  the  action  is  brought. 
In  Marriott  v.  Cotton,  2  C.  &  Kir.  553,  (61  E.  C.  L.  R.  553,)  where 
a  landlord  brought  an  action  for  non-repair  during  the  continuance  of 
a  term  of  years,  it  was  ruled  at  N'l&i  Prius  that  nominal  damages 
only  could  be  recovered.  But  it  is  at  least  doubtful  whether  this 
ruling  can  be  supported,  since  there  is  both  reason  and  authority  in 
favour  of  the  view  that  the  true  measure  of  the  amount  of  damages 
in  this  case  is  the  injury  to  the  market  value  of  the  landlord's  rever- 
sion. See  Smith  v.  Peat,  9  Exch.  161;  Doe  d.  Worcester  Trustees 
V.  Rowlands,  9  C.  &  P.  734,  (38  E.  C.  L.  R.  425,)  and  Turner  v. 
Lamb,  14:  M.  &  W.  412,*  from  the  last  of  which  cases  it  appears  that 
the  amount  of  the  damages  depends  on  the  length  of  the  term  which 
is  still  unexpired.  Another  question,  which  relates  to  the  damages 
recoverable  under  a  covenant  to  repair,  arises  where  there  is  a  lease 
and  a  sub-lease,  both  of  which  contain  a  contract  to  repair,  and  the 
superior  landlord  has  sued  the  lessee  on  his  covenant  to  repair  In 
Neale  v.  Wyllie,  3  B.  &  C.  533,  (10  E.  C.  L.  R.  244,)  where  a  tenant 
holding  under  a  lease  which  contained  a  covenant  to  repair,  underlet 
to  a  person  who  entered  into  a  similar  covenant,  and  the  original 

17 


258  LANDLORD    AND    TENANT. 

fire ;  yet,  as  *I  have  also  stated,  that  act  leaves 
*-  "-^  express  contracts  between  landlord  and  tenant 
mitouched,^"^  and,  consequently  it  has  been  held  that, 
where  the  tenant  is  under  a  general  covenant  to  re- 
pair  the  premises^  and  to  leave  them  in  repair  at  the  end 
of  the  term,  and  accidents  by  fire  are  not  excepted  out 
of  that  covenant,  he  must  rebuild  them  if  they  should 
be  casually  burnt  do^vn.  Earl  of  CJiesterfield  v.  Duke 
of  Bolton,  Comyn,  627;  Poole  v.  Archer,  Skin.  210; 
Bullock  V.  Doynmitt,  6  T.  R.  650.^^  And  what  seems 
even  harder,  he  is  obliged  to  pay  the  rent,  though  he 

lessor  brought  an  action  against  the  lessee  on  the  covenant  in  the 
lease,  and  recovered,  it  was  held  that  the  damages  and  costs  recovered 
in  that  action,  and  also  the  costs  of  de/eriding  it,  might  be  claimed  as 
special  damage  in  an  action  by  the  lessee  against  the  under-lessee  for 
the  breach  of  his  covenant  to  repair.  But  it  was  doubted  in  Penley 
V.  Watts,  7  M.  &  W.  601,*  whether  this  decision  was  correct,  so  far 
as  it  relates  to  the  costs  of  the  first  action,  and  it  has  been  overruled 
by  the  later  case  of  Walker  v.  Hatton,  10  M.  &  W.  249,*  where,  un- 
der circumstances  substantially  similar,  it  was  held  that  the  costs 
occasioned  by  the  defence  of  the  first  action  were  not  recoverable 
against  the  under-lessee,  as  they  were  not  necessarily  caused  by  the 
breach  of  covenant  on  his  part.  See  also  Smith  v.  Howell,  6  Exch. 
730;  Pennell  v.  Woodburn,  7  C.  &  P.  117,  (32  E.  C.  L.  R.  528,) 
Shorts.  Kalloway,  11  A.  &  E.  28,  (39  E.  C  L.  R.  17,) ;  Blyth  v. 
Smith,  5  M.  &  Gr.  405,  (44  E.  C.  L.  R.  217,) ;  and  Logan  v.  Hall, 
4  C.  B.  598,  (56  E.  C.  L.  R.  698,). 

^^  This  act,  as  has  been  already  observed  [ayitc,  p.  198,  note  *°), 
has  been  repealed ;  but  the  14  Geo.  3,  c.  78,  s.  86,  which  is  the 
provision  on  this  subject  now  in  force,  also  provides  that  no  contract 
or  agreement  made  between  landlord  and  tenant  shall  be  thereby 
defeated  or  made  void. 

15  See  also  M'Kenzie  v.  M'Leod,  10  Ring.  385,  (25  E.  C.  L.  R. 
184,).  By  the  law  of  Scotland,  the  tenant  is  liable  to  compensate 
the  landlord  if  the  premises  are  burnt  down  by  the  negligence  or 
misconduct  of  the  tenant's  servant  in  the  ordinary  scope  of  his 
employment. 


EXPRESS    AGREEMENT.  259 

has  quite  lost  the  enjoyment  of  the  premises.(n!) 
WeigaU  v.  Waters,  6  T.  ii.  488 ;  Izon  v.  Gorton,  5  Bing. 
N.  C.  501,  (35  E.  C.  L.  R.  198,);  *Holtzaj)ffen 
V.  Baker,  18  Ves.  115  [S.  C.  4  Taunt.  45.]-«  ^  ^^'^^ 
With  regard  to  cultivation,  you  will  generally  find 
that  the  stipulations  with  regard  to  the  mode  of  culti- 
vation inserted  in  the  lease  resemble  pretty  much  the 
general  custom  of  the  county  where  the  lands  are 
situated.  And,  even  if  there  were  no  express  stipula- 
tions on  the  subject,  such  stipulations  would  be  held 
to  be  impliedly  incorporated  with  the  lease,  unless, 
indeed,  it  were  to  appear  either  expressly  or  impliedly, 
that  the  parties  did  not  intend  to  be  governed  by  it. 
See  Hutton  v.  Warren,  1  M.  &  W.  466* ;  Wigglesicorih 
V.  Dallison,  1  Dougl.  201.'^ 

^°  See  also  Leeds  v.  Cheetham,  1  Sim.  146 ;  Packer  v.  Gibbins,  1 
Q.  B.  421,  (41  E.  C.  L.  R.  607,) ;  and  ante,  p.  140,  note. 

2^  As  is  stated  in  the  text,  the  custom  is  excluded  where  the 
written  agreement  is  expressly  or  impliedly  inconsistent  with  it. 
Roberts  v.  Barker,  1  Cr.  &  M.  808  ;*  Clarke'  v.  Roystone,  13  M.  & 
W.  752.*  Evidence  of  usage  or  custom  is  receivable  to  annex  inci- 
dents to  written  contracts  in  matters  with  respect  to  which  they  are 
silent,  not  only  in  agreements  between  landlords  and  tenants,  but 
also  in  commercial  contracts,  and  in  contracts  in  other  transactions  of 
life  in  which  known  usages  have  been  established.  See  the  notes  to 
Wigglesworth  v.  Dallison,  1  Smith's  L.  C.  307;  and  the  judgment 
in  Syers  v.  Jonas,  2  Exch.  116,  where  Baron  Parke  says,  "  There  is 
no  doubt  that,  in  mercantile  transactions,  and  others  of  ordinary 
occurrence,  evidence  of  established  usage  is  admissible,  not  merely  to 
explain  the  terms  used,  but  to  annex  customary  incidents.  In  the 
case  of  Hutton  v.  Warren,  the  law  on  this  subject  was  laid  down 
fully,  and  the  limitations  pointed  out.  Such  usage  is  admissible 
when  it  is  not  expressly  or  impliedly  excluded  by  the  tenor  of  the 
written  instrument."     See  also  po.s/,  Lect.  IX.     A  stipulation  as  to 

(a)  See  Pollard  v.  Schaffer,  1  Dall.  210,  and  ante,  note  to  page 
195;  Nave  v.  Berry,  22  Ala.  382.     See  note  (a)  page  252. 


*^ 


260  LANDLORD    AND    TENANT. 

^  *  As  the  landlord  and  tenant  thus,  by  express 

'-''-'  stipulation,  sometimes  extend  that  liability 
which  would  have  attached  to  the  tenant  in  the  ab- 
sence of  express  words,  under  the  denomination  of 
vasie^  so  they  occasionally,  in  some  respects,  diminish 
that  liability  by  inserting  in  the  lease  the  words  vdili- 
out  impeachment  of  vxiste^  the  effect  of  which  is  to 
enable  him  to  cut  do^vn  timber,  open  mines,  and  do 
many  other  acts  which,  in  the  absence  of  express  agree- 
ment, would  be  waste.  Pyne  v.  Do)\  1  T.  R.  55.  But 
even  when  these  words  are  inserted,  equity  will  re- 
strain him  from  committing  malicious  waste,  such,  for 
instance,  as  cutting  down  trees  placed  for  the  shelter 
and  ornament  of  the  house.  Packington^ s  Case,  3 
Atk.  215. 

With  regard  to  the  landlord's  remedies  in  case  of 
the  tenant's  committing  any  breach  of  duty  with  re- 
gard to  repairs  or  cultivation, — where  there  is  any 
express  covenant  or  agreement  between  the  parties, 
the  action  is,  of  course,  one  of  covenant  if  the  lease  be 
by  deed,  or  of  assumpsit  if  it  be  not  by  deed,  for  the 
breach  of  such  express  covenant  or  agreement.  If 
there  be  no  express  agreement,  but  the  tenant  has 
committed  that  which,  in  the  eye  of  the  law,  and  look- 
ing at  the  nature  of  his  tenancy,  amounts  to  waste,  the 
remedy  was  anciently  by  a  mixed  action,  called  an 
action  of  'waste;  that  is,  however,  one  of  the  forms  of 
action  abolished  by  Lord  Lyndhurst's  Act,  3  «&:  4  W. 

the  cultivation  of  the  land  demised  in  a  particular  mode,  as,  for 
instance,  an  agreement  respecting  the  rotation  of  crops,  may  be  en- 
grafted on  a  yearly  tenancy  that  arises  by  implication  of  law  from 
the  payment  of  rent.  Doe  d.  Thomson  v.  Amey,  12  A.  &  E.  476, 
(40  E.  C.  L.  K.  239,) ;  see  also  Hyatt  v.  Griffiths,  17  Q.  B.  505,  (79 
E.  C.  L.R.  505,). 


NON-REPAIR.  261 

4,  c.  27,  s.  36  ;  and,  even  before  that  Act  *had     ^^^_, 

r  2U'3 1 

passed,  it  had  fallen  altogether  into  disuse,  in    ^  -^ 

consequence  of  there  being  a  much  easier  and  more 
efficacious  remedy  by  an  action  on  the  case  in  the  nature 
of  waste,  which,  in  the  absence  of  express  agreement,  is 
the  form  now  universally  adopted.  Of  this  action  you 
will  find  a  full  and  satisfjictory  account  in  the  notes  to 
Greene  v.  Cole,  2  Wms,  Saund.  251."^(^() 

Besides  these  actions,  equity  will  interfere  by  injunc- 
tion for  the  purpose  of  restraining  voluntary  waste,  if 
it  be  of  a  nature  likely  to  be  of  permanent  detriment 
to  the  inheritance.  See  Coidson  v.  White,  3  Atk.  21 ; 
Jackson  V.  Cator,  5  Ves.  688.'^^ 

Now,  with  regard  to  the  tenant's  rights  against  the 
landlord.     The  chief  rights  of  the  landlord  against  the 

22  See  ante,  p.  197,  note  ^\ 

23  See  The  Mayor  of  London  v.  Hedger,  18  Ves.  355.  In  Pratt 
V.  Brett,  2  Madd.  62,  an  injunction  was  granted  against  sowing  land 
with  pernicious  crops,  and  removing  the  hay  and  manure  from  it;  see 
also  Fleming  v.  Snook,  5  Beav.  250.  The  Superior  Courts  of  Common 
Law  have  now  the  power  to  issue  writs  of  injunction.  By  the 
Common  Law  Procedure  Act,  1854  (17  &  18  Vic.  c.  125),  s.  79,  it 
is  enacted  that  in  <'all  cases  of  breach  of  contract  or  other  injury, 
where  the  party  injured  is  entitled  to  maintain  and  has  broi;ght  an 
action,  he  may claim  a  writ  of  injunction  against  the  repeti- 
tion or  continuance  of  such  breach  of  contract  or  other  injury,  or  the 
committal  of  any  breach  of  contract  or  injury  of  a  like  kind,  arising 
out  of  the  same  contract,  or  relating  to  the  same  property  or  right; 
and  he  may  also,  in  the  same  action,  include  a  claim  for  damages  or 
other  redress." 

(a)  The  action  of  waste  is  given  by  statute  in  Pennsylvania,  Act 
13th  June,  1836,  §  79,  P.  L.  587,  though  it  is  not  much,  if  ever, 
resorted  to.  The  reqaedies  in  general  use  are  the  action  on  the  case  in 
the  nature  of  waste,  or  by  writ  of  estrepement  where  it  is  applicable. 
See  Brightly's  Purdon,  title  Wiste.  Or  by  bill  in  equity.  1  Parsons, 
304 ;  Green  v.  Keen,  4  Md.  98. 


262  LANDLORD    AND     TENANT. 

tenant  arc,  as  we  have  seen,  to  have  the  stipidated  com- 
pensation paid  Mm  for  his  property^  and  to  have  it  pro- 
perly treated  vjhile  it  remains  out  of  his  possession.  The 
great  and  principal  right  *of  the  tenant  against 
■-  ^    the  landlord  is — to  he  inaintained  in  the  peace- 

able a7id  quiet  enjoyment  of  the  pn'operty  demised  to  him. 
And  this  right  the  law  appends  to  every  tenancy, 
whether  tliere  be  an  express  covenant  for  quiet  enjoy- 
ment contained  in  the  lease  or  not.  And,  indeed,  as  I 
shall  in  a  few  moments  explain  to  you,  it  sometimes 
happens  that  the  effect  of  an  express  covenant  for  quiet 
enjoyment  is  to  diminish  instead  of  to  extend  the 
right  which  the  tenant  w^ould  have  possessed  by  law, 
had  there  been  no  covenant ;  a  strong  instance  of 
which  will  be  found  in  Merrill  v.  Frame,  4  Taunt.  329, 
a  case  which  I  will  presently  cite  more  at  length. 
Now,  in  the  absence  of  any  express  stipulation,  the 
tenant's  right  may  be  expressed  in  these  words,  he  has 
a  right  to  have  his  estate  secured  to  him,  and  he  has  a  right 
to   have    the   quiet    enjoyment    of    it   secured   to   him.^ 

24  There  is  however  no  implied  obligation  on  the  landlord  to  repair 
the  premises,  Pindar  v.  Aiusley,  cited  in  the  judgment  in  Belfour  v. 
Weston,  1  T.  R.  312;  Leeds  v.  Cheetham,  1  Sim.  146;  Baker  v. 
Holtp/affell,  4  Taunt.  45 ;  Arden  v.  Pullen,  10  M.  &  W.  321  f 
Gott  V.  Gandy,  2  E.  &  B.  847,  (75  E.  C.  L.  R.  847,).  Nor  is  there 
any  implied  warranty  on  the  letting  of  a  house,  or  of  land,  that  it  is, 
or  shall  be,  reasonably  fit  for  habitation,  occupation,  or  cultivation. 
Neither  does  the  law  imply  a  contract,  still  less  a  condition,  on  the 
demise  of  real  property,  that  it  is  fit  for  the  purpose  for  which  it  is 
let.  (a)  Hart  v.  Windsor,  12  M.  &  W.  68  ;*  Sutton  v.  Temple,  ib.  52. 
It  was  held,  indeed,  in  Smith  v.  Marrable,  11  M.  &  W.  5,*  that 
where  a  ready  furnished  house  was  let  for  temporary  residence  at  a 
^atering-place,  there  was  an  implied  condition  on  the  letting  that  it 
was  reasonably  fit  for  habitation,  and,  therefore,  that  the  tenant  was 
entitled   to  quit  it  without  notice  upon  its  appearing  to  be  greatly 

(a)  Cleaves  u.  Willoughby,  7  Hill,  83. 


RIGHTS     OF     TEN"ANT.  263 

*Thus,  if  A.  lets  to  B.,  having  himself  no  title, 
and  B.  is  evicted  by  the   true  owner,  he  may   •-  -' 

bring  an  action  against  A.  to  be  indemnified,  though 
there  be  no  covenant  for  title  contained  in  the  lease, 
for  the  vrord  demise  creates  an  implied  covenant.  Style 
V.  Hearing^  Cro.  Jac.  73 ;  Phicomhe  v.  Rudge,  Yelv. 
139;  Holder  Y.  Taylor,  Hob.  U:%i). 

infested  with  bugs.  But,  unless  a  distinction  exist  between  a  densise 
of  this  description  and  an  ordinary  letting,  it  may  be  doubted  whether 
this  case  be  law;  and  whether,  if  the  point  were  to  arise  again,  it 
would  not  be  held  that  the  tenant  is  bound,  in  all  cases  of  this  descrip- 
tion, to  protect  himself  from  inconvenience  by  express  stipulation. 
See  the  judgments  in  the  last  three  cases  cited  above. 

^^  See  De  Medina  v.  Norman,  9  M.  &  W.  820,*  where  it  was  said, 
by  Baron  Parke,  that  the  "meaning  of  a  contract  to  demise  is  not 

(a)  Dexter  v.  Manly,  4  Cush.  14.  In  Pennsylvania  a  covenant 
or  agreement  for  quiet  enjoyment  is  implied  in  a  parol  lease,  and 
assumpsit  may  be  maintained  for  the  breach  of  it.  C.  J.  Black,  thus 
expresses  himself :  "  It  is  not  denied  that  the  word  demise  in  a  lease 
implies  a  covenant  for  quiet  enjoyment  during  the  term.  That  word 
was  not  used  here,  for  the  lease  was  made  by  parol,  and  the  parties 
did  not  understand  Latin.  But  the  word  lease  is  a  fair  translation  of 
demise,  and  ought  to  be  and  is  interpreted  in  the  same  way  by  the 
Court."  Maule  v.  Ashmead,  8  Harris,  484.  See  in  New  Hamp- 
shire and  New  York,  Lovering  v.  Lovering,  13  N.  H.  513;  Baxter  v. 
Ryerss,  13  Barbour's  Sup.  C.  R.  284.  The  New  York  statutes,  it 
would  seem,  have  taken  away  all  actions  on  covenants  implied  in  the 
conveyance  of  real  estate.     Kenney  v.  Watts,  14  Wend.  38. 

If  to  the  implied  covenant  arising  from  the  word  "  demise,"  is 
added  an  express  covenant  for  quiet  enjoyment  '<  without  eviction  by 
the  lessor,  or  any  claiming  under  him,"  the  express  covenant 
restricts  the  implied.  Noke's  Case,  4  Coke,  81;  Merrill  v.  Frame, 
4  Taunt,  329,  and  in  Line  v.  Stephenson,  5  Bing.  N.  C.  183,  (35  E. 
C.  L.  R.  77,)  Lord  Denman,  C.  J.,  says,  "It  is  true  that  the  word 
demise  does  imply  a  covenant  for  title,  but  only  where  there  is  no 
express  covenant  inconsistent  with  such  a  construction."  See  also 
Blair  v.  Hardin,  1   Marsh,  232 ;  Gates  v.   Caldwell,   7   Mass.   68  ; 


264  LANDLORD    AND    TENANT. 

*As  the  lessor  is,  in  the  absence  of  express 
r*2081  . 

■-         -^    agreement,   bound   to    guarantee    his   tenant 

only  that  a  certain  form  of  words  shall  he  put  on  paper,  hut  that  the 
party  assuming  to  demise  shall  have  a  title  to  demise."  See  also  the 
judgment  of  the  same  learned  judge  in  Sutton  v.  Temple,  12  M.  & 
W.  64;*  the  judgment  of  the  Court  in  Hart  v.  Windsor,  ib.  85  ;  and 
the  notes  to  Promfrct  v.  Ricroft,  1  Wms.  Saund.  322  a.  Even  on  a 
demise  by  parol  a  contract  for  quiet  enjoyment  is  implied ;  but  not  a 
contract  for  good  title.  Bandy  v.  Cartwright,  8  Exch.  913.  In 
Messent  v.  Reynolds,  3  C.  B.  194,  (54  E  C  L.  R.  194,)  it  was 
doubted  whether  a  contract  for  quiet  enjoyment  could  be  implied  from 
a  mere  agreement  to  let.  It  has,  however,  been  held  that  a  person 
who  lets  premises  agrees  impliedly  to  give  possession  of  them,  and 
not  merely  to  give  a  right  of  action  against  any  person  who  is  in 
possession  and  refuses  to  give  it  up.  And,  therefore,  if  the  lessor 
omits  to  give  possession  to  the  lessee,  the  latter  may  recover  damages 
against  him,  and  is  not  driven   to  bring  an  ejectment  for  the  land. 

Sumner  v.  Williams,  8  Mass.  201;  Vanderkarr  v.  Vanderkarr,  11 
Johns.  122. 

The  implied  covenant,  however,  does  not  survive  the  estate 
of  the  grantor  as  the  express  covenant  will.  Thus,  if  tenant 
for  life  makes  a  lease  for  years,  and  dies  during  the  term,  the  remedy 
on  the  implied  covenant  dies  with  him;  but  if  an  express  covenant  is 
introduced  into  the  lease  it  is  binding  on  his  estate,  and  may  be 
enforced  against  his  executors.  Swan  v.  Searles,  Dyer,  257  ;  Adams 
V.  Gibney,  6  Bing.  656,  (19  E.  C.  L.  R.  296,)  ;  Williams  v.  Burrell, 
1  Com.  B.  R.  402,  (50  E.  C  L.  R.  402,) ;  Fishers.  Milliken,  8  Barr. 
112;  Van  Rensselaer  v  Platner,  2  John's  Cases,  17.  See  Quain's 
Appeal,  10  Harris,  510.  Until  this  case,  there  never  was  a  doubt 
entertained  in  Pennsylvania  that  the  action  lay  against  the  executor 
on  the  covenant.  The  Court  say  :  <'  The  real  security  is  the  covenant 
running  with  the  land  and  encumbering  it.  It  is  a  covenant  payable 
in  the  contemplation  of  the  parties  out  of  the  profits  of  the  land; 
and  it  would  be  entirely  unreasonable  that  the  law  should  hold  the 
administrator  for  the  rent,  when  it  gives  the  land  to  the  heir."  The 
next  step  is,  to  say  that  the  covenantor  is  not  bound  after  he  parts 
with  the  land.     See  8  Sect.  Penn'a  Act,  1850,  P.  L.  571. 


RIGHTS    OF    TENANT.  265 

against  eviction  from  the  premises  by  some  person 
having  superior  title,  so  he  is  bound  to  guarantee  him 

Coe  V.  Clay,  5  Bing.  440,  (15  E.  C.  L.  R.  660,).  A  covenant  for 
quiet  enjoyment,  whether  it  be  express  or  implied,  runs  with  the 
land,  and  may  be  sued  on  by  the  assignee  of  the  lessee.  In  Williams 
V.  Burrell,  1  C.  B.  402,  (50  E.  C  L.  R  402,)  a  tenant  for  life,  with 
a  leasing  power,  demised  the  land  by  deed  for  a  term  of  years,  if  three 
persons  should  so  long  live.  The  indenture  contained  a  covenant  by 
the  lessor  in  the  following  terms  : — <'  And  the  said  Earl  (the  lessor), 
for  himself,  his  heirs  and  assigns,  the  said  demised  premises,  with  the 
appurtenances,  unto  the  said  J.  W.  (the  lessee),  his  executors,  admin- 
istrators, and  assigns,  under  the  rent,  covenants,  conditions,  excep- 
tions, and  agreements  before  expressed,  against  all  persons  whatsoever 
lawfully  claiming  the  same,  shall  and  will  during  the  said  term  war- 
rant and  defend."  It  was  held,  that  this  clause  operated  as  an 
express  covenant  for  quiet  enjoyment  during  the  wl^ole  of  the  term 
granted  by  the  lease.  And,  therefore,  the  lease  having,  after  the 
death  of  the  lessor,  been  held  to  be  void  as  not  in  due  conformity 
with  the  leasing  power,  that  the  lessee  or  his  assignee,  or  the  execu- 
tors of  such  assignee,  might  recover  against  the  executors  of  the  lessor 
the  value  of  the  term  and  the  costs  of  defending  an  ejectment  brought 
by  the  remainder-man,  and  also  the  sum  recovered  by  him  as  mesne 
profits.  The  Court,  after  examining  in  detail  in  their  judgment  into 
the  distinction  between  a  warranty  properly  so  called  and  the  cove- 
nant in  question,  and  also  into  the  difference  between  covenants  in 
law  and  covenants  in  deed,  proceeded  :  '<  Therefore,  both  upon  prin- 
ciple and  authority,  we  think  this  is  an  express  covenant  for  quiet 
enjoyment  which  extends  to  the  term  purported  to  be  granted,  and, 
consequently,  that  the  defendants  are  liable  therein  as  executors  of 
the  covenantor.  We  think  that  the  executor  of  the  lessee  has  the 
same  right  of  suing  on  tkis  covenant  as  the  original  lessee.  In  Spen- 
cer's Case,  4th  Resolution,  it  was  held  that  a  covenant  in  law  for 
title  would  pass  with  the  estate ;  and  there  is  neither  principle  nor 
authority  to  show  that  an  express  covenant,  cither  for  title  or  quiet 
enjoyment,  will  not  equally  pass  and  be  available  for  the  assignee  of 
the  lessee,  or  the  executor  of  such  assignee.  And  although,  in 
Andrew  v.  Pearce  (1  New.  R.  158),  it  was  held  that  no  action  was 
maintainable  upon  the  covenant  for  quiet  enjoyment  by  the  assignee 
of  the  lessee  against  the  executor  of  the  lessor,  yet  that  was  expressly 


2G6  LANDLORD    AND     TENANT. 

*a<xaiiist  the  disturbance  which  would  be  occa- 


o 


^  "  -'  sioned  by  some  person  enforcing  a  charge 
wliich  the  lessor  ought  to  have  satisfied,  but  which, 
not  being  satisfied  by  him,  entitled  its  owner  to  make 
distress  upon  the  demised  premises.  Thus,  if  A.  let 
to  B.,  and  B.  to  C,  and  B.  allow  his  rent  to  K.  to 
become  in  arrear,  so  that  A.  makes  a  distress  for  it 
upon  the  premises  in  C.'s  occupation,  C,  as  I  have  in 
a  former  Lecture  explained,  if  he  think  fit  to  pay  the 
charge,  in  order  to  liberate  his  goods  from  the  distress, 
may  claim  credit  for  the  amount,  as  so  much  rent  due 
to  his  own  immediate  landlord  B.-^  But  it  may  hap- 
pen that  C,  owes  B.  no  rent,  or  less  than  the  amount 
which  he  has  been  thus  forced  to  pay,  or  he  may  not 
have  been  able  to  pay  the  charge,  but  have  been 
obliged  to  suffer  his  property  to  be  sold  by  the  dis- 
trainer; still,  as  the  landlord  is  under  an  implied 
obligation  that  he  shall  quietly  enjoy  the  property 
demised  to  him,  he  may  maintain  an  action  against 
B.,  his  landlord,  and  wdll  recover  damages  propor- 
tionate to  the  injury  which  he  has  thus  experienced 
by  his  defaults.  Hancock  v.  Caffyn,  8  Bing.  358,  (21 
E.  C.  L.  R.  576,);  Burnett  v.  Lynch,  8  D.  «&  R.  368; 
[S.  C.  5  B.  &  C.  589];  (11  E.  C.  L.  R.  597,);  and 
see  Dawson  v.  Dyer,  5  B.  &  Ad.  584,  (27  E.  C.  L. 
R.  248.)-' 

on  the  ground  that  the  lease  had  become  absolutely  void  by  the  death 
of  the  lessor,  before  the  assignment  made  to  the  plaintiff;  a  fact 
which  does  not  occur  in  the  present  case."  It  must  be  recollected, 
that  since  the  8  &  9  Vic.  c.  106,  s.  4,  neither  the  word  "give,"  nor 
the  word  "grant,"  in  any  deed  executed  after  the  1st  October,  1845, 
implies  any  covenant  in  law  in  respect  of  any  tenements  or  heredita- 
ments, except  so  far  as  these  words  may  by  force  of  any  Act  of 
Parliament  imply  a  covenant.     See  antCj  p.  68,  note. 

28  Ante,  p.  129. 

^^  In  Dawson  v.  Dyer,  which  was  a  case  of  an  express  contract  for 


EIGHTS    OF     TENANT.  2(37 

*However,  this  implied  obligation  on  the  ^ 
part  of  the  landlord  to  protect  his  tenant  in  *- 
the  possession  and  quiet  enjoyment  of  the  premises, 
extends  only  to  guarantee  the  tenant  against  evictions 
and  disturbances  caused  by  himself,  or  any  person 
claiming  under  him,  or  paramount  to  him  ;  for  it  is 
obvious  to  sound  reason  and  common  sense,  that  if  one 
man  demises  property  to  another,  he  ought  to  take 
care  that  he  have  himself  a  right  to  that  which  he 
demises;  and  consequently  that  no  person  claiming 
paramount  to  Idm^  that  is  by  a  superior  title  to  his, 

quiet  enjoyment,  the  premises  were  demised  for  a  term  at  a  certain 
rent,  and  the  lease  contained  a  proviso  for  re-entry  if  the  rent  should 
be  in  arrear  twenty-one  days.  The  lessee  covenanted  to  pay  the  rent, 
and  the  landlord  covenanted  that  the  lessee,  jmi/ in ff  theyearly  rent  on 
the  days  appointed,  and  performing  all  the  covenants  in  the  lease, 
should  peaceably  and  quietly  enjoy  the  premises.  The  lessee  having 
been  disturbed  in  his  possession,  it  was  held  that  he  might  sue  the 
landlord  on  his  covenant,  although  at  the  time  when  the  cause  of 
action  accrued,  the  rent  had  been  in  arrear  more  than  twenty-one 
days;  the  payment  of  the  rent  not  being  a  condition  precedent  to  the 
performance  of  the  covenant  for  quiet  enjoyment.  Some  observations 
made  by  the  Lord  Chief  Justice  Tindal,  in  his  judgment  in  Ireland  v. 
Bircham,  2  Bing.  N.  C.  97,  (29  E.  C  L.  R.  454,)  appear  to  be  incon- 
sistent with  this  decision,  but  the  real  point  decided  in  the  last- 
mentioned  case  is  not  so.  In  Ireland  v.  Bircham,  a  lessee  demised 
the  premises  by  deed  to  an  under-tenant  for  a  term  to  commence  at  a 
future  day ;  and  the  deed  contained  a  covenant  by  the  lessee  with  the 
under-lessee  that  the  latter,  paying  the  rent  reserved  on  the  under- 
lease and  observing  the  covenants  in  it,  should  quietly  enjoy  the  pre- 
mises during  the  term  by  the  underlease  granted.  Before  the  time 
arrived  at  which  the  term  was  to  commence,  the  lessee  forfeited  his 
own  term  by  non-payment  of  the  rent  due  to  the  superior  landlord,  and 
the  under-lessee  brought  an  action  against  him  on  his  covenant.  The 
Court  held,  that  as  the  under-lessee  was  not  in  possession  of  the  land, 
and  the  term  to  which  the  covenant  related  bad  not  in  fact  begun 
this  action  could  not  be  maintained. 


268  LANDLORD    AND     TENANT. 

shall  interfere  with  the  enjoyment  of  his  tenant.  And 
in  like  manner  it  is  plain,  that  he  ought  to  take  care 

^ that  he  has  not,  by  his  own  act  ffiven  a  *title  to 

r  2111  .  .        . 

■-  -■  some  one  to  interfere  with  his  tenant's  posses- 
sion. Indeed,  to  do  so  would  be  manifest  dishonesty, 
for  which  by  every  rule  of  justice  and  of  com- 
mon sense,  he  ought  to  be  and  is  answerable ;  but  the 
case  is  quite  different  when  somebody  who  has  no  title 
at  all — some  mere  trespasser,  thinks  proper  to  inter- 
fere with  the  tenant's  enjoyment.  In  such  a  case,  the 
law  of  the  land  vindicates  the  tenant's  rights,  and  he 
is  bound  to  resort  to  that  law ;  and  he  may  sue  and 
prosecute  the  wrong-doer  without  having  recourse  to 
his  landlord,  whom  it  would  be  unreasonable  to  expect 
to  indemnify  him  against  every  wanton  trespass  com- 
mitted by  third  persons:  Andrews'  Case^  Cro.  Eliz. 
214;  Shep.  Touch.  166.  Upon  the  whole,  the  law  on 
this  subject  may  be  summed  up  by  saying,  that  the 
landlord,  in  the  absence  of  express  agreement,  is  under 
an  implied  obligation  to  indemnify  the  tenant  against 
eviction,  or  disturbance  by  his  own  act,  or  the  acts  of 
those  who  claim  under  or  paramount  to  him ;  but  not 
against  the  tortious  acts  of  third  persons,  for  which  the 
law  of  the  realm  affords  the  tenant  a  direct  remedy 
against  those  who  commit  them."^(t«) 

2^  A  trespass  by  the  lessor  does  not  operate  as  a  suspension  of  the 
rent,  see  1  Wms.  Saund.  204,  note  ^;  nor  does  a  trespass  by  a 
stranger.  See  Paradine  v.  Jane,  Aleyn.  26,  where,  in  an  action  for 
rent,  a  plea  by  the  lessee  that  a  German  prince,  by  name  Prince 
Rupert,  an  alien  born,  had  invaded  the  realm  with  an  hostile  army, 
and  had  entered  upon  his  possession  and  expelled  him  from  the  pre- 
mises, was  held  to  be  no  answer  to  the   action.     An  eviction  is  an 

(«)  And  not  against  the  exercise  of  the  right  of  eminent  domain 
by  the  state.      Dobbins  v.  Brown,  2  Junes,  75. 


RIGHTS    OF     TENANT.  269 

*Tliis  is,  I  say,  the  law   in  the  absence  of  ex-    ^^^,  ^ 

/V         1  ^1  [*212] 

p?'ess  agreement,  tor  where    there  are  express   ^         -" 

answer  to  a  demand  for  rent  which  is  claimed  as  due  after  the  eviction, 
but  not  in  respect  of  rent  due  before  it. (a)  See  2  Roll.  Ab.  428, 
Rent  (0) ;  Bac.  Ab.  Rent  (L) ;  Boodle  v.  Cambcll,  7  M.  &  Gr.  386, 
(49  E.  C.  L.  R.  386,);  and  Selby  v.  Browne.  7  Q.  B.  620,  (53  E.  C. 
L  R.  620,).  An  eviction  of  part  of  the  premises  occasions  a  sus- 
pension of  the  entire  rent  during  its  continuance,  but  the  tenancy 
is  not  put  an  end  to,  nor  is  the  tenant  discharged  from  the  perform- 
ance of  the  covenants  other  than  those  which  provide  for  the  pay- 
ment of  the  rent.  (6)  This  is  explained  in  the  judgment  of  the  Court 
in  Morrison  v.  Chadwick,  7  C  B.  283,  (62  E.  C.  L.  R.  283,).  "It 
may  be  urged,"  said  the  Court,  "  that  the  landlord  may  have  evicted 
the  tenant  from  the  possession  of  a  part  of  the  demised  premises,  the 
possession  of  which  part  was  the  main  inducement  to  him  to  enter 
into  the  covenants  of  the  lease,  and  therefore  that  he  ought  not  any 
longer  to  be  bound  by  them.  But  it  is  to  be  borne  in  mind,  that  in 
addition  to  the  suspension  of  the  rent,  the  lessee  may  maintain  his 
action  against  the  lessor  for  the  eviction;  by  which  it  is  to  be  pre- 
sumed that  he  will  obtain  satisfaction  for  any  inconvenience  or  loss 
which  he  may  suffer."  See  also  Newton  v.  Allin,  1  Q.  B.  519,  (41 
E.  C.  L.  R.  652,)  where  a  plea  of  eviction  of  part  of  the  demised  pre- 
mises was  held  to  be  no  answer  to  an  action  of  covenant  for  non- 
repair. In  order  to  make  a  plea  of  this  kind  a  good  answer  to  a 
claim  for  rent,  it  must  show  either  an  eviction  or  a  dissolution  of  the 
tenancy  by  mutual  consent,  such  as  a  surrender.  See  Gore  v.  Wright, 
8  A.  &  E  118,  (35  E.  C.  L.  R.  346,);  Dunn  v.  Di  Nuovo,  3  M.  & 
Gr.  105,  (42  E.  C.  L.  R.  63,)  ;  Morrison  v.  Chadwick,  cited  above, 

(a)   Kesler  v.  McConachy,  1  Rawle,  335. 

(h)  Vaughn  v.  Blanchard,  1  Yeates,  175 ;  Pendleton  v.  Dyett,  4 
Cow.  58,  and  8  Cow.  727  ;  Reed  v.  Ward,  10  Harris,  144,  150.  The 
Court  say  :  ''After  severance,"  (that  is,  apportionment,)  "the  entry 
and  expulsion  of  the  tenant  by  one  reversioner  suspends  only  the  rent 
■which  issues  out  of  that  part,  and  has  no  effect  upon  the  rent  due 
from  other  tenants,  or  from  the  same  tenant  for  other  lands,  although 
all  the  lands  had  previously  been  held  by  one  tenant  under  one  lease." 


270  LANDLORD    AND    TENANT. 

terms  and  *stipulations  on  this  subject  in  the 
^  -"    demise,  the  rule  expressum  cessare  facit  taciturn 

applies,  and  those  terms,  and  not  the  rules  which  I 
have  just  stated,  govern  the  subject.  Thus  the  land- 
lord may,  if  he  think  proper,  extend  his  liability  by 
covenanting  in  express  terms  against  disturbance  by  a 
particular  person  named  in  the  covenant,  and  then  he 
w^ill  be  liable  for  all  disturbances  caused  by  that 
specific  person,  be  they  rightful  or  wrongful.  See 
Nash  V.  Palmer,  5  M.  &  S.  374.^^  And,  on  the  other 
hand,  the  wording  of  the  express  covenant  may  very 
much  restrain  the  implied  liability.  A  very  remark- 
able instance  of  this  is  to  be  found  in  Merrill  v.  Frame^ 
4  Taunt.  329,  the  case  to  which  I  said  I  should  recur. 
There  the  lessor  covenanted  against  eviction  by  him- 
self, and  all  persons  claiming  "  hy,  from,  or  under  Jdm.'' 

and  Smith  v.  Lovell,  10  C.  B.  6,  (70  E.  C  L.  R.  6,).  In  Neale  v. 
Mackenzie,  2  C.  M.  &  R.  84,*  S.  C.  1  M.  &  W.  747,*  a  lessee  of 
land  accepted  the  lease  and  entered.  Upon  his  entry  he  found  a  small 
portion  of  the  land  in  the  occupation  of  a  person  entitled  under  a 
previous  lease  from  the  same  lessor  for  a  term  exceeding  that  granted 
by  the  later  lease.  This  person  kept  possession  of  the  land  demised 
to  him,  and  excluded  the  lessee  under  the  later  lease  from  the  enjoy- 
ment of  it  until  half  a  year's  rent  became  due  from  the  latter.  The 
Court  of  Exchequer  Chamber  held,  reversing  the  judgment  of  the 
Court  below,  that  this  case  was  not  analogous  to  an  eviction,  but  that 
the  later  demise  was  wholly  void  as  to  the  portion  of  land  occupied 
under  the  first  lease,  and  that  the  rent  was  not  apportionable,  so  that 
the  lessor  was  not  entitled  to  distrain  either  for  the  whole  rent  re- 
served on  this  lease,  or  for  any  part  of  it.  See  also  Watson  v.  Waud, 
8  Exch.  335.  If,  however,  the  lessee  is  evicted  from  part  of  the 
demised  premises  by  title  paramount  to  that  of  the  lessor,  the  rent  is 
apportioned.  See  1  Roll.  Ab.  235,  Apportionment  (13)  j  Stevenson 
V.  Lambard,  2  East,  575;  and  the  cases  cited  above. 

29  See  also  Fowle  v.  Welsh,  1  B.  &  C  29,  (8  E.  C.  L.  R.  14,); 
and  Lewis  v.  Smith,  9  C.  B.  610,  (67  E.  C.  L.  R.  610.). 


RIGHTS    OF    TENANT.  271 

It  was  held  that  the  lessee  was  not  guaranteed  against 
eviction  by  a  title  paramotmf  to  his  lessor^s,  although  he 
would  have  been  so  had  the  express  covenant  not 
been  inserted  at  all.'"'(«)     Upon  the  whole,  in   these 

*cases  you  must  look   to   the   words  of  each 

r*2141 
covenant  as  the  measure  of  the  liability ;  and   ■-         -" 

to  the  general  law  only  when   there  is   no   express 

covenant  at  all. 

I  must  now  pause  till  the  next  Lecture. 

30  In  Stauley  v.  Hayes,  3  Q.  B.  105,  (43  E.  G.  L.  R.  652,)  the 
lessor  had  covenanted  with  the  lessee  for  the  quiet  enjoyment  by  him 
of  the  demised  premises  "  without  any  let,  suit,  trouble,  denial,  dis- 
turbance, eviction  or  interruption  whatsoever  of  or  by"  the  landlord, 
his  heirs  or  assigns,  "  or  any  other  person  lawfully  claiming  or  to 
claim  by,  from,  or  under,  him,  them,  or  any  of  them,"  and  afterwards 
a  collector  of  the  land-tax  had  entered  upon  the  lessee  and  seized 
goods  upon  the  premises  for  arrears  of  the  tax  due  from  the  landlord 
before  the  demise.  It  was  held,  that  these  facts  did  not  amount  to  a 
breach  of  the  landlord's  covenant,  for  that  it  was  only  applicable  to 
claims  by  a  title  from  him,  and,  under  the  circumstances,  the  claim 
had  been  made  not  tlirongh  but  against  him. 

(a)  The  exercise  of  the  right  of  eminent  domain  is  not  a  breach  of 
the  covenant  of  warranty.  Dobbins  v.  Brown,  2  Jones,  75.  It  would 
seem  that  it  may  be  of  the  covenant  of  quiet  enjoyment.  See  Peters 
V.  Grubb,  9  Harris,  465. 


272 


LANDLORD    AND     TENANT. 


[*215] 


*LECTUIIE    YIII. 


Points  relating  to  Determi- 
nation OP  the  Tenancy 215 

Ways  in  which  Tenancy  may 

determine 215 

By  Effluxion  of  Time 216 

Adverse  Possession  since  the 

3  &4  Wm.  4,  c.  27 216 

Yearly  Tenancy  upon  a  Hold- 
ing over 219 

By  Surrender 222 

Express 223 

At  common  Law 224 

Since  Statute  of  Frauds,  and 

the  8  &  9  Vic.  c.  106 224 

By  Operation  of  Law 225 

By  taking  a  new  Lease 225 

By  other  Acts 226 

Rights  of  third  Parties  not 

affected 231 

Effect  upon  Rights  of  Sur- 
renderor    231 


For  Purpose  of  Renewal, . .  232 

By  Forfeiture 233 

Disclaimer 233 

By  Notice  to  quit 234 

When  to  be  given 234 

In  what  Form 237 

Effect  of  Mistakes  in 237 

How  served 239 

How  waived 240 

By  Receipt  of  Rent 240 

By  Distress,  &c 240 

Rights  of  Parties  on  Determi- 
nation OF  Tenancy 241 

Right  of  Landlord  to  Pos- 
session   241 

Small  Tenements  Acts 243 

Proceedings    under    the    11 

Geo.  2,  c.  19,  s.  16 244 

Double  Value 244 

Double  Rent 245 


The  points  connected  with  the   determination  of  a 
tenancy  may  be  discussed  under  two  questions — 

1st.  In  what  way  may  it  be  put  an  end  tol 

2ndly.  What  are  the  mutual  rights  of  the  landlord 
and  tenant  upon  its  determination'? 

With  regard  to  the  former  question — a  tenancy  may 
determine — 

1.  By  efflux  of  time. 
[*216]      2.  *By  surrender. 
3.  By  forfeiture. 

4.  By  notice  to  quit,  which  applies,  however,  only 
to  the  case  of  tenancies  from  year  to  year,  or  of  a  like 


EFFLUXION     OF    TIME.  273 

description  with  tenancies  for  years.  A  tenancy  at 
will,  strictly  speaking,  may,  as  I  before  told  you,  be 
determined  simply  by  the  determination  of  the  land- 
lord's or  tenant's  will.^ 

Now,  with  regard  to  the  determination  of  a  tenancy 
by  lapse  of  time — by  efflux  of  the  period  stated  in  the 
lease — it  is,  of  course,  unnecessary  to  say  much.  From 
that  moment  the  tenant's  right  to  the  possession  deter- 
mines, the  landlord's  reversion  becomes  a  right  to  the 
possession?  And  although  formerly  it  would  not  have 
been  so,  now,  by  the  late  statute  3  <&  4  Wm.  4,  c.  27, 
the  time  of  limitation  begins  to  run  against  the  land- 
lord, so  that,  in  twenty  years,  he  will  be  barred,  if  he 
take  no  step  to  vindicate  his  title. 

It  is  worth  while  to  pause  for  a  few  moments  to  con- 
sider the  precise  position,  with  reference  to  this  Act 
of  Parliament,  of  a  landlord  and  tenant  upon  the 
determination  of  the  lease.  The  lease  constitutes  the 
tenant's  title  to  the  possession.  With  its  expiration  his 
right  of  possession  ends.  After  its  expiration,  ^ 
therefore,  if  he  continue  in  *possession,  he  con-  •-  -* 
tinues  loithout  any  title  at  all.  Still,  as  he  originally 
entered  by  good  title,  he  becomes,  not  a  mere  tres- 
passer, but  a  tenant  hy  sufferance ;  a  tenant  hy  suffer- 
ance being,  as  I  explained  in  the  first  Lecture,  one 
who  comes  in  by  right,  and  holds  over  without  right. 
Now,  previously  to  the  act  of  3  &  4  Wm.  4,  c.  27,  the 
possession  of  a  tenant  by  sufferance  never  was  adverse 
to  the  landlord,  and,  so  long  as  the  tenancy  at  suffer- 
ance continued,  the  time  of  limitation  would  not  begin 

^  Ante,  p.  16. 

^  In  this  case  both  the  parties  have,  as  is  obvious,  notice  from  the 
lease  itself  of  the  period  at  which  it  determines.  See  Cobb.  v.  Stokes, 
8  East.  358,  and  the  judgment  of  Lord  Mansfield  in  Messenger  v. 
Armstrong,  1  T.  R.  bi. 

18 


2.74  LANDLORD    AND    TENANT. 

to  run  against  him.  There  were,  indeed,  modes  in 
which  the  tenancy  at  sufferance  was  liable  to  be  deter- 
mined, even  without  the  landlord's  intervention;  for 
not  merely  would  a  demand  by  the  landlord  determine 
it,  but,  if  the  tenant  by  sufferance  transferred  the  pos- 
session to  a  third  party,  that  third  party  came  in,  not 
as  a  tenant  by  sufferance,  but  as  a  trespasser,  since  the 
tenant  by  sufferance,  having  no  title  himself,  could,  of 
course,  give  none  to  his  transferee.  And,  for  the  same 
reason,  if  the  tenant  by  sufferance  died,  his  represen- 
tative, if  he  held  on,  held  as  a  trespasser,  and  the  time 
of  limitation  ran  from  his  entry .^  But,  if  none  of 
these  things  took  place,  but  the  old  tenant  who  had 
come  in  under  the  lease  simply  continued  to  hold  over 
as  tenant  on  sufferance,  his  possession  was  not  con- 
sidered by  the  law  adverse  to  the  right  of  the  rever- 
sioner, nor  *did  the  time  of  limitation  rmi  so 

r*218) 

*-         ^   long  as  the  tenancy  on  sufferance  continued.^(a) 

^  See  Co.  Litt.  57  b. ;  Com.  Dig.  Estales  hy  Grant  (I.)j  and  the 
note  to  Watkins  oa  Convey.  (9th  edition,)  p.  23. 

■*  See  the  note  to  Watkins  on  Convoy.  (9th  edition),  p.  23;  and 
the  notes  to  Nepean  v.  Doe,  2  Smith's  L.  C.  399. 

(a)  The  statute  8  &  4  William  4,  has  not,  it  is  believed,  been 
followed  in  any  of  the  United  States.  It  is  still  true  here  that  a 
possession  acquired  from  the  true  owner  cannot  be  used  to  the  de- 
struction of  his  estate,  unless  it  was  the  intention  to  transfer  the 
entire  estate  at  the  time  of  the  transfer  of  the  possession.  McGinnis 
V.  Porter,  8  Harris,  83.  Possession  to  give  title  under  the  Statute 
of  Limitations  must  be  an  <'  actual,  continued,  visible,  notorious, 
distinct  and  hostile  possession,"  as  was  said  by  Judge  Duncan,  in 
Hawk  V.  Senseman  and  others,  6  Serg.  &  Rawle,  21.  And  again,  in 
the  same  case :  "  The  owner  does  not  forfeit  his  title  to  the  first 
straggler  who  sets  himself  down  on  his  land ;  but  the  policy  of  the 
law,  for  the  sake  of  quieting  men's  possession,  confers  the  possessory 
right  itself  on  him  who  has  entered  under  an  adverse  claim,  and  held 


EFFLUXION     OF     TIME.  275 

The  statute  3  «&  4  Wm.  4,  c.  27,  has  put  an  end  to 
this  state  of  things,  and  has  enacted  in  effect  by  s.  2, 
that  the  time  of  limitation  shall  run  from  the  period  at 
which  the  right  to  the  possession  first  accrued,  unless  the 
title  of  the  rightful  owner  be  acknowledged  by  the 
party  in  possession.  And  in  the  great  case  of  Nepean 
V.  Doe,  2  M.  8c  W.  894,*  the  Court  of  Exchequer 
Chamber  has  declared  the  effect  of  this  enactment  to 
be,  that  the  question  now  is,  not  ivhether  there  has  been 
what  was  formerly  called  an  adverse  possession  for  twenty 
years,  hut  whether  twenty  years  have  elapsed  since  the 
right  accrued,  ivhatever  he  the  nature  of  the  p)Osse8sion  ;^  so 

^  See  the  notes  to  this  case,  2  Smith's  L.  C.  396,  and  antfi,  p.  19, 
note  ^■*.  Where  the  possession  is  a  bar  under  the  3  &  4  Wm.  4,  c. 
27,  it  may  still  properly  be  called  adverse  possession,  although  not  in 
the  old  sense.  Sugden's  Essay  on  the  Real  Property  Statutes,  Chap. 
I.  ss.  III.  &  IV.  It  is  provided  by  s.  7  of  this  act,  that  where  any 
person  is  in  possession  of  land  as  tenant  at  will,  the  right  to  recover 
the  land  is  to  be  deemed  to  have  first  accrued  either  at  the  termina- 
tion of  the  tenancy,  or  at  the  expiration  of  one  year  from  its  com- 

a  notorious  possession  and  occupation  for  twenty-one  years."  The 
title  draws  the  possession,  and  the  statute  does  not  begin  to  run  until 
there  is  an  actual  ouster.  4  Kent  Com.  482,  &c. ;  Green  v.  Liter  et 
al.,  8  Cranch,  229;  Kennebec  Prop'rs  v.  Springer,  4  Mass.  416  ; 
Same  v.  Laboree,  2  Greenl.  275;  Jones  v.  Porter,  3  Penn.  132; 
Nickle  V.  McFarland,  3  Watts,  16.5  ;  Hall  et  ux.  v.  Stevens,  9  Met. 
418;  Burhans  v.  Van  Zandt,  7  Barb.  Sup.  Ct.  E,.  92;  Jackson  v. 
Stiles,  1  Cow.  575  Wadsworthville  School  v.  Meetze,  4  Rich,  50; 
Herbert  v.  Henrick,  16  Alab.  581,  594. 

But  if  one  in  possession  of  land  under  another,  repudiates  the 
contract,  and  gives  the  person  under  whom  he  went  into  possession 
notice  that  he  shall  no  longer  hold  under  him,  the  relation  ceases, 
the  possession  becomes  adverse,  and  the  Statute  of  Limitations 
begins  to  run.  Greeno  v.  Munson,  9  Verm.  37;  North  v.  Baruum 
10  Vermt.  220. 


276  LANDLORD    AND    TENANT. 

that  you  see,  now,  by  the  operation  of  this  act,  the 
tenant,  if  he  held  over,  would  in  twenty  years  acquire 

mencement,  provided  that  no  mortgagor  or  cestui  que  trust  is  to  be 
deemed  a  tenant  at  will,  within  the  meaning  of  this  section,  to  his 
mortgagee  or  trustee.  It  may  be  useful  to  refer  to  some  of  the  late 
decisions  which  show  the  construction  which  has  been  put  upon  this 
portion  of  the  act.  It  has  been  held  that  this  section  does  not  apply 
when  the  tenancy  at  will  has  ceased  before  the  passing  of  the  act. 
Doe  d.  Evans  v.  Page,  5  Q.  B.  767,  (48  E.  C.  L.  R.  767,) ;  and  Doe 
d.  Birmingham  Canal  Company  v.  Bold,  11  Q.  B.  127,  (63  E.  C  L. 
R.  127,).  In  Doe  d.  Bennett  v.  Turner,  7  M.  &  W.  226  ;*  9  M.  & 
W.  643  ;*  the  owner  of  land  let  a  person  into  possession  of  it  as  a 
tenant  at  will,  and  some  years  afterwards  determined  the  will. 
Twenty-two  years  after  this  he  brought  an  ejectment  to  recover  the 
land.  The  Court  held,  that  as  his  right  of  action  first  accrued  under 
the  statute  at  the  expiration  of  one  year  after  the  commencement  of 
the  tenancy  at  will,  the  action  was  brought  too  late,  unless  the  jury 
found,  as  a  fact,  that  after  the  tenancy  at  will  had  been  determined, 
the  tenant,  who  would  then  become  a  mere  tenant  at  sufferance,  had 
entered  into  an  express  or  implied  agreement  with  the  owner  of  the 
land  for  a  new  tenancy.  See  also  Doe  d.  Angell  v.  Angell,  9  Q.  B. 
328,  (58  E.  C.  L.  R.  328,).  The  right  to  recover  the  land  has  been 
held  to  be  barred  under  this  statute  after  an  occupation  for  more  than 
twenty  years  without  payment  of  rent,  even  although  during  part  of 
that  time  the  wife  of  the  person  in  possession  had  a  life  estate  in  the 
land  in  question,  and  occupied  it  with  him,  the  jury  having  found  that 
he  was  a  tenant  at  will ;  Doe  d.  Dayman  v.  Moore,  9  Q.  B.  555,  (58 
E.  C.  L.  R.  555,).  In  Doe  d.  Goody  v.  Carter,  ih.  868,  a  purchaser 
of  land  was  let  into  possession  before  conveyance,  and  allowed  his  son 
to  occupy  as  tenant  at  will  without  paying  any  rent.  The  son  con- 
tinued to  occupy  as  at  first,  until  his  death,  which  occurred  within 
twenty-one  years  of  his  entry  Some  years  after  the  commencement 
of  the  son's  occupation,  the  father  took  from  the  vendor  a  conveyance 
of  the  land,  and  mortgaged  the  property,  but  he  made  no  alteration  in 
the  terms  of  the  son's  tenancy.  After  the  son's  death  his  widow  con- 
tinued to  occupy  without  payment  of  rent  until  the  expiration  of 
twenty-one  years  from  her  husband's  entry.  An  ejectment  was  after- 
wards brought  against  her  by  the  person  to  whom  the  interest  of  the 


EFFLUXION    OF    TIME.  277 

a  title  himself  by  lapse  of  time.  And  the  old  doctrine, 
as  to  the  innoxious  effect  of  a  tenancy  on  sufferance,  is 
done  away  with. 

mortgagee  had  passed.  It  was  held  that  the  action  was  brought  too 
late,  for  that  the  tenancy  at  will  was  not  determined  by  the  father's 
taking  a  conveyance,  and  even,  if  it  had  been  determined  by  that 
event,  or  by  the  mortgage,  a  tenancy  at  sufferance  must  be  deemed  to 
have  then  commenced,  there  being  no  evidence  of  a  new  tenancy  at 
will,  and  the  tenancy  altogether  had  lasted  more  than  twenty  years 
from  the  end  of  the  first  year.  In  Doe  d.  Jacobs  v.  Phillips,  10  Q. 
B.  130,  (59  E.  C.  L.  E,.  130,)  the  Court  of  Queen's  Bench  held  that 
the  trustee  of  a  term  who  had  never  been  in  possession,  and  had 
never  demanded  the  possession,  could  not  recover  the  land  after 
twenty  years  had  elapsed,  since,  if  the  cestui  que  trusts  were  to  be 
deemed  tenants  at  will,  a  demand  of  possession  was  necessary,  and  if 
no  tenancy  existed,  the  action  might  have  been  brought  twenty  years 
before.  In  this  case  the  Court  appeared  to  be  of  opinion  that  s.  3  of 
the  3  &  4  Wm.  4,  c.  27,  is  applicable  to  the  case  of  a  cestui  que  trust 
holding  possession  of  the  land  under  a  trustee.  But  the  Court  of 
Common  Pleas  has  held,  after  a  careful  examination  of  the  sections  of 
the  statute  which  relate  to  this  subject,  that  this  is  not  so ;  but  that 
the  general  object  of  the  statute  is  to  settle  the  rights  of  persons  ad- 
versely litigating  with  each  other,  and  not  to  deal  with  cases  of  trus- 
tee and  cestui  que  trust,  in  which  there  is  only  a  single  interest ; 
namely,  that  of  the  person  beneficially  entitled.  Garrard  Dem.  v. 
Tuck  Ten.,  8  C.  B.  231,  (65  E.  C.  L.  R.  231,).  It  would  appear  from 
the  last-mentioned  case  that  a  cestui  que  trust  who  enters  into  the 
possession  of  the  land  is,  at  law,  a  tenant  at  will  to  the  trustee,  and 
that  under  s.  2  of  this  act  the  right  of  entry  of  the  trustee  accrues 
only  upon  the  determination  of  the  tenancy  at  will  resulting  from  the 
possession,  and  does  not  arise  from  its  first  commencement.  In  Ran- 
dall V.  Stevens,  2  E.  &  B.  641,  (75  E.  C.  L,  Pt.  641,)  a  person  had 
been  let  into  possession  of  land  as  a  tenant  at  will  before  the  passing 
of  the  statute,  and  never  paid  any  rent.  After  the  passing  of  the 
act,  and  before  twenty-one  years  had  elapsed  from  the  commencement 
of  the  tenancy  at  will,  the  landlord  entered  and  turned  the  tenant  out 
of  the  possession,  which,  however,  was  resumed  by  him  again  on  the 
same  day.     No  fresh  tenancy  at  will,  however,  was  entered  into,  and 


278  LANDLORD    AND    TENANT. 

*Bnt,  though  at  the  end  of  the  lease,  if  the 

^         ^   tenant  holds  over  he  holds  over  as  a  tenant  at 

^  sufferance — *still,  if  when  the  period  for  pay- 

'-         -■   ment  of  rent  comes,  he  pay  to  his  landlord  the 

rent  reserved  by  the  *expired  lease,  he  becomes 

r*2211 

*-         -^   tenant  from  year  to  year ;  the  payment  of  such 

rent  by  him,  and  the  receipt  of  it  by  his  landlord, 
being  considered  indicative  of  their  mutual  intention 
to  create  a  yearly  tenancy ;  and  thereupon  the  Statute 
of  Limitations  ceases  to  run  against  the  landlord,  who 
acquires  a  new  reversion  expectant  on  the  yearly 
tenancy,  and  the  tenant  becomes  entitled  to  the  ordi- 
nary notice  to  quit.  And  it  is  very  remarkable  that 
the  yearly  tenancy  thus  raised  is  governed,  not  by  the 
simple  rules  which  govern  yearly  tenancies  in  the 
absence  of  express  stipulation,  but  by  the  provisions  of 
the  expired  lease,  so  far  as  they  are  consistent  and 
compatible  with  a  yearly  holding.  See  Doe  d.  Rigge 
V  Bell,  5  T.  R.  471*;  Richardson  y.  Gifford,  1  A.  &  E. 

no  rent  was  paid  at  any  time.  Under  these  circumstances  the  Court 
held  that  the  landlord  was  entitled  to  enter  upon  the  premises  at  any 
time  before  the  lapse  of  twenty  years  from  the  time  at  which  the 
tenant  had  resumed  the  possession,  although  more  than  twenty-one 
years  might  have  elapsed  from  the  time  when  he  was  first  let  into 
the  possession,  and  had  become  tenant  at  will.  In  delivering 
judgment  in  this  case,  the  Court  observed,  that  if  the  matter  had 
been  res  integraj  the  more  reasonable  construction  of  s.  7  might  have 
been  that  "  where  there  has  been  no  actual  determination  of  the  te- 
nancy by  act  of  the  parties  within  twenty-one  years,  it  shall  be 
deemed  to  have  determined  at  the  expiration  of  the  first  year,  making 
an  occupation  of  twenty-one  years  without  payment  of  rent  a  bar : 
but  that  where  there  has  been  an  actual  determination  of  the  tenancy 
within  that  period,  whereby  a  new  right  of  entry  accrues,  this  clause 
of  the  statute  shall  have  no  operation,  <  svch  tenancy'  heinj  sitpposed 
J}y  the  statute  to  continue  till  the  riyht  of  entry  is  harred." 


SURRENDER.  279 

52,  (28  E.  C.  L.  R.  49,) ;  BeaJe  v.  Saiuhrs,  3  Bing.  N. 
C.  850,  (32  E.  C.  L.  R.  390,).^ (a) 

^  See  the  cases  cited,  ante,  p.  22,  note  " ;  and  Doe  d.  Thomson 
V  Amey,  12  A.  &  E.  476,  (40  E.  C.  L.  R.  239,)  in  which  case  it 
was  held,  that  a  person  who  was  let  into  possession  under  an  agree- 
ment for  a  future  lease  for  years,  which  was  to  contain  a  covenant 
against  taking  successive  crops  of  corn,  and  a  condition  of  re-entry 
for  breach  of  any  of  the  covenants,  and  who  had  paid  rent,  had 
thereby  become  a  yearly  tenant  subject  to  these  terms  and  conditions. 
The  following  recent  decisions  are  instances  of  the  application  of  the 
rule  which  is  mentioned  in  the  text.  In  Finch  v.  Miller,  5  C.  B.  428, 
(57  E.  C.  L.  R.  428,)  a  tenant  had  occupied  the  premises  under  an 
agreement  in  writing,  by  which  they  were  let  for  three,  seven,  or  ten 
years,  subject  to  a  six  months'  notice  at  any  of  these  periods,  and  by 
which  it  was  stipulated  that  a  quarter's  rent  should  be  paid  on  taking 
possession,  and  should  be  allowed  to  the  tenant  at  the  determination 
of  the  tenancy.  A  notice  to  determine  the  tenancy  at  the  end  of  the 
third  year  was  given  by  the  tenant,  but  shortly  before  it  expired  the 
parties  verbally  agreed  that  the  occupation  should  continue  for  another 
year,  nothing  being  said  as  to  the  terms.  It  was  held,  that  this  agree- 
ment stipulated  in  substance  for  a  forehand  rent,  and  that,  no  other 
terms  being  mentioned,  the  tenant  continued  to  occupy  for  the  addi- 
tional year  on  the  terms  of  the  original  agreement,  and,  consequently, 
that  the  payment  made  on  taking  possession  was  applicable  to  the  last 
quarter  of  the  actual  occupation,  and  was  to  be  allowed  to  the  tenant 
in  respect  of  this  quarter.  In  another  case,  the  assignee  of  a  lease 
for  a  term  of  years  made  an  underlease,  and  on  its  expiration  the  as- 
signee of  the  under-lessee,  who  was  then  in  possession,  held  over  and 
paid  rent.     The  original  lease  commenced  at  Christmas  and  ended  at 

(a)  See,  to  the  same  purport,  the  following  American  cases, — 
Fronty  v.  Wood,  2  Hill  S.  C.  367  ;  Brewer  v.  Knapp,  1  Pick.  335  ; 
Diller  V.  Roberts,  13  S.  &  R.  60  ;  Bacon  v.  Brown,  9  Conn.  334 ; 
Dorrill  V.  Stevens,  4  McCord,  59  ;  Be  Young  v.  Buchanan,  10  Gill. 
&  Johns.  149  ;  Phillips  v.  Menges,  4  Wh.  226 ;  Conway  v.  Stark- 
weather, 1  Benio,  113  ;  Jackson  v.  Patterson,  4  Harrington,  534; 
Hawkins  v.  Pope,  10  Ala.  493  ;  Lockwood  v.  Lockwood,  22  Conn. 
425. 


280  LANDLORD    AND    TENANT. 

*Next  with  regard  to  the  determination  of 
r*  990-1  ^ 

•-  ^^  -'    the  lease  by  surrender.     A  surrender,  which 
derives  *its  name  from  the  two  Latin  words 

r*9231 

'-"'-'  sursum  and  redditio  is  defined  by  my  Lord  Coke 
(1  lust.  337  b)  to  be  "  the  yielding  up  of  an  estate  for 
life  or  years  to  him  that  hath  an  immediate  estate  in  the 
reversion  or  remainder.""^ 

Midsummer.  The  Court  held,  that  a  tenancy  from  year  to  year  had 
arisen  by  reason  of  the  holding  over  and  payment  of  rent,  but  that  it 
commenced  at  2Iidsummer,  when  the  lease  expired,  not  at  Christmas, 
when  the  entry  of  the  original  lessee  took  place ;  see  Doe  d.  Buddie 
V.  Lines,  11  Q  B.  402,  (63  E.  C.  L.  K.  402,).  And  see  Doe  d. 
Davenish  v.  Moflfatt,  15  Q.  B.  2.57,  (69  E.  C.  L.  K.  257,)  in  which 
case  a  tenant  entered  into  possession  and  paid  rent  under  a  contract  of 
demise  which,  not  being  under  seal,  could  operate  only  as  an  agree- 
ment for  a  lease,  owing  to  the  provisions  of  the  7  &  8  Vic.  c.  76, 
which  were  then  in  force.  The  agreement  provided  for  a  lease  for 
three  years,  and  that  it  should  be  renewable  for  the  same  term  upon 
notice  by  the  tenant.  The  tenant  paid  rent  and  gave  a  notice  that  he 
wished  to  have  a  renewal  of  the  tenancy.  It  was  held,  that  by  the 
payment  of  rent  a  tenancy  from  year  to  year  had  been  created,  sub- 
ject to  the  terms  of  the  agreement,  and  therefore  that  the  tenant's  in- 
terest expired  without  any  notice  to  quit  at  the  end  of  the  three  years 
mentioned  in  the  agreement,  but  that  his  having  exercised  the  option 
to  take  a  renewed  term  gave  him  no  interest  in  the  land.  A  tenant 
who  holds  over  after  the  expiration  of  a  lease  may  be  taken  to  hold 
on  any  of  its  terms  which  are  not  inconsistent  with  a  yearly  tenancy. 
Hyatt  V.  Griffiths,  17  Q.  B.  505,  (79  E.  C.  L.  R.  505).  In  this  case 
a  stipulation  was  contained  in  a  lease  ending  at  Michaelmas  that  the 
tenant  might  retain  and  sow  a  portion  of  the  laud  with  wheat  at  the 
seed  time  next  after  the  end  of  the  term,  and  have  the  standing  of  it 
till  the  following  harvest,  without  paying  any  rent,  and  the  use  of 
part  of  the  farm  for  the  purpose  of  threshing  out  the  crop,  with 
liberty  of  ingress  and  egress.  It  was  held,  that  this  was  a  stipulation 
which  might  be  incident  to  a  tenancy  from  year  to  year.  It  must  be 
observed,  that  in  all  these  cases  it  is  a  question  of  fact  for  the  jury, 
whether  the  tenant  who  holds  over  does  or  does  not  hold  upon  any  of 
the  terms  of  the  expired  lease.     See  the  case  last  cited. 


SURRENDER.  281 

There  are  two  species  of  surrender : — 

1.  A  surrender  in  express  terms. 

2   A  surrender  hy  operation  of  law. 

With  regard  to  a  surrender  in  express  terms,  the 
proper  and  technical  words  by  which  it  should  be 
made  are  surrender  and  yield  up,  but  the  general  rule 
that  all  documents  shall  be  construed  so  as  to  effectuate 
if  possible  the  intention  of  the  parties  applies  to  sur- 
renders as  well  as  to  other  assurances,  and,  conse- 
quently, words  of  release.^  if  it  be  plain  that  they  are  so 
intended,  will  operate  as  a  surrender,  although  a 
release  is  the  very  opposite  thing  to  a  surrender,  for  a 
release,  as  you  know,  operates  by  the  reversion  being 
given  to  the  owner  of  the  particular  estate,  ■w^hereas, 
in  the  case  of  surrenders,  the  particular  estate  is  given 
up  to  the  reversioner.  See  Smithy.  Maplehack,  1  T.  R. 
441."(«) 

7  See  also  Williams  v.  Sawyer,  3  Bro.  &  Bing.  70,  (7  E.  C.  L.  K. 
353,).  An  agreement  of  this  description,  which  does  not  operate  as  a 
surrender,  may  yet  amount  to  an  excuse  for  the  non-payment  of  the 
rent.  See  Gore  v.  Wright,  8  A.  &  E.  118,  (35  E.  C.  L.  R.  346,); 
Turner  v.  Hardey,  9  M.  &  W.  770  ;*  Dunn  v.  D\  Nuovo,  3  M.  &  Gr. 
105,  (42  E.  C.  L.  R.  63,) ;  Morrison  v.  Chadwick,  7  C  B.  266,  (62 
E.  C.  L.  R.  266,) ;  and  Smith  v.  Lovell,  10  C.  B.  6,  (70  E.  C.  L. 
R.  6,). 

(a)  To  constitute  an  express  surrender,  no  set  form  of  words  is  ne- 
cessary, nor  is  it  required  there  should  be  a  formal  re-delivery  or  can- 
cellation of  the  deed  or  other  instrument  which  created  the  estate  to  be 
surrendered.  All  that  is  requisite  is  the  agreement  and  assent  of  the 
proper  parties  manifesting  such  an  intent,  followed  by  a  yielding  up 
of  the  possession  to  him  who  hath  the  greater  estate.  Greider's 
Appeal,  5  Barr,  424.  The  fact  of  surrender  merges  the  term  in  the 
reversion ;  the  relationship  of  landlord  and  tenant  between  the  par- 
ties is  completely  gone.  There  is  no  apportionment  of  rent  up  to  the 
day  of  the  surrender.     lu  Bain  v.  Clark,  10  Johns.  424,  the   tenant 


282  LANDLORD    AND    TENANT. 

*At  common  law,  a  surrender  might  have 
'-"'-'  been  made  by  mere  words,  whenever  the  estate 
surrendered  could  have  been  created  by  mere  words, 
which  was  the  case  with  all  leases  for  years  of  corpo- 
real hereditaments.^  However,  by  the  Statute  of 
Frauds,  29  Car.  2,  c.  3,  s.  3,  no  sm-render  is  valid 
unless  [by  deed  or  note]  in  writing,  signed  by  the 
party  making  it  or  his  agent  thereunto  lawfully 
authorised  by  writing,  or  "  hy  act  and  operation  oflaic.''^ 
You  will  see  the  operation  of  this  statute  and  the  state 
of  the  previous  law  discussed  in  Farmer  d.  Earl  v. 
Rogers,  2  Wils.  26." 

8  Co.  Litt.  338  a. 

^  An  insufficient  notice  to  quit,  accepted  by  the  landlord,  will  not 
since  this  statute  amount  to  a  surrender ;  nor  can  there  be,  appa- 
rently, a  surrender  to  operate  in  futuro.  See  Johnstone  v.  Hudle- 
stone,  4  B.  &  C.  922,  (10  E.  C.  L.  R.  860,) ;  Doe  d.  Murrell  v.  Mil- 
ward,  3  M.  &  W.  328  ;*  and  Bessell  v.  Landsberg,  7  Q.  B.  038,  (53 
E.  C.  L.  R.  638,).  Since  this  Lecture  was  written  the  8  &  9  Vic.  c. 
106,  s.  3,  has  provided  that  "a  surrender  in  icriting  of  an  interest  in 
any  tenements  or  hereditaments,  not  being  a  copyhold  interest,  and 
not  being  an  interest  which  might  by  law  have  been  created  without 
writing,  made  after  the  1st  October,  1845,  sliall  he  void. at  law  unless 
made  hy  deed."     This  enactment  does  not  extend  to  Ireland.     Ih. 

surrendered  his  lease  by  writing,  agreeing,  however,  for  the  payment 
of  the  rent  reserved  by  the  lease,  and  that  the  landlord  might  take 
all  lawful  means  for  its  recovery,  according  to  the  lease  and  the  laws 
of-  the  State.  The  landlord  having  distrained  for  a  year's  rent,  the 
former  tenant  brought  replevin.  The  Court  said  :  "  The  relation- 
ship of  landlord  and  tenant  between  the  parties  was  entirely  gone, 
and  though  the  lessee  might  continue  bound  for  a  year's  rent,  by 
reason  of  the  express  agreement  in  the  deed  of  surrender,  yet  that 
was  a  personal  responsibility  founded  on  the  agreement,  and  could  not 
arise  from  the  continuance  of  the  contract  between  them  as  landlord 
and  tenant.     See  Shephard  v.  Spalding,  4  Met.  416. 


SURRENDER.  283 

But  this  statute  contained,  as  you  have  just  heard, 
an  exception  of  surrenders  by  act  and  operation  of  law. 
Such  surrenders,  therefore,  are  still,  notwithstanding 
the  Statute  of  Frauds,  valid  *without  writing ;  ^^09^-1 
and  this  renders  it  necessary  to  enquire  what  ■- 
constitutes  a  surrender  hy  act  and  operation  of  law.  [a) 


la)  It  is  held  in  Pennsylvania,  on  the  interpretation  df  the  Statute 
of  Frauds,  notwithstanding  the  general  words  of  the  Act,  that  sur- 
renders required  to  be  in  writing  are  only  of  leases  required  to  be  in 
writing ;  consequently,  that  leases  not  exceeding  three  years,  whether 
they  be  in  writing  or  not,  may  be  surrendered  by  parol,  by  express 
words;  and  that  implied  surrenders  are  valid  notwithstanding  the 
statute,  which  has  to  do  merely  with  express  surrenders.  McKinney 
V.  Reader,  7  Watts,  123.  This  was  an  action  of  trespass,  in  which 
plaintiff  declared  that  he  was  quietly  possessed  of  a  house  and  lot  of 
ground,  and  that  the  defendant  broke  and  entered  into  the  premises 
and  kept  the  possession.  The  defendant  was  the  owner  of  the  house 
and  lot  and  leased  them  to  the  plaintiff  for  one  year;  during  the  year 
the  plaintiff  absconded,  and  afterwards  his  family  locked  up  the  pre- 
mises, and  followed,  without  leaving  property  on  the  premises  to  pay 
the  rent.  The  question  was,  whether  this  was  not  such  an  implied 
surrender  of  the  lease  as  justified  the  landlord  in  resuming  his  pos- 
session. The  Court  below  was  of  opinion  that  it  was  not ;  their  judg- 
ment was  reversed  by  the  Supreme  Court.  C.  J.  Gibson  says  :  "  An 
implication  of  surrender  is  not  precluded  by  the  Statute  of  Frauds, 
which  concerns  a  surrender  by  express  words,  and  of  a  lease,  too, 
which  could  not  have  been  validly  constituted  otherwise  than  by 
writing."  '<  I  take  it,  a  lease  for  less  than  three  years,  whether 
written  or  not,  may  be  surrendered  or  transferred  by  an  oral  expres- 
sion of  assent.  The  case  of  an  implied  surrender,  however,  I  have 
already  intimated,  was  never  imagined  to  be  within  this  statute ;  and  it 
is  with  this  alone  we  have  at  present  to  do.  The  question,  therefore, 
stands  not  on  any  supposed  statutory  provision,  but  on  common  law 
principles  of  recision  ;  and  I  confess  I  have  found  no  case  which 
comes  entirely  up  to  the  position,  that  the  desertion  of  rented  pre- 
mises is  a  surrender  in  law ;  yet,  for  want  of  a  specific  proceeding  to 
prevent  a  failure  of  justice,  we  must,  as  the  British  Court  would  have 


284  LANDLORD    AND    TENANT. 

At  first  it  was  contended  that  the  cancellation  of  the 
lease  would  operate  as  a  surrender  of  the  term  created 
therein  hy  act  and  operation  of  lata.  However,  it  was 
soon  determined  that  this  would  not  suffice.  Boe  d. 
Berlceley  v.  Arclibishop  of  York,  6  East,  86 ;  Doe  d. 
Courtail  v.  Thomas,  9  B.  &  C.  288;  (17  E.  C. 
L.  R.  135,);  Magennis  v.  Mac  Cullogh,  Gilb.  Cases  in 
Eq.  235. 

It  had,  however,  been  held,  before  the  passing  of  the 
Statute  of  Frauds,  that  if  A.,  being  B.'s  tenant,  accept 
of  a  new  lease  from  B.,  to  take  effect  during  the  con- 
tinuance of  the  subsisting  lease,  it  operates  as  a  sur- 
render in  law  of  the  subsisting  lease ;  for  the  two 
leases  are  incompatible,  and  the  acceptance  of  the 
second  shows  that  the  lessee  contemplated  the  destruc- 
tion of  the  first.  See  Com.  Dig.,  Surrender  (I.) ; 
Hamerton  v.  Stead,  3  B.  &  C.  478,  (10  E.  C.  L.  R., 
220,).i« 

^°  In  Hamerton  v.  Stead,  cited  above,  a  tenant  from  year  to  year 

done,  had  not  their  Parliament  relieved  them  from  the  task,  enlarge 
the  class  of  implied  surrenders  beyond  its  limits  in  the  books,  by 
holding  that  an  abandonment  is  such  a  relinquishment  of  the  pre- 
mises as  justifies  an  immediate  resumption  of  it." 

"Here  the  tenant  had  locked  up  his  effects,  and  fled  from  the 
State  with  an  avowed  intent  to  evade  the  rent ;  and  though  in  his 
letters  from  Jersey,  whence  he  carries  on  this  suit,  he  expressed  a 
desire  to  return,  checked  by  fear  of  arrest,  he  spoke  as  would  an 
absconding  debtor,  and  gave  particular  directions  for  the  retreat  of 
his  family  with  his  effects.  Can  it  be  that  those  circumstances  did 
not  constitute  a  surrender  which  authorized  the  landlord  to  resume 
the  possession  for  the  preservation  of  his  property,  and  the  avoidance 
of  a  loss  from  the  mis-employment  of  it  ?  He  might  possibly  have 
had  a  remedy  by  the  Act  of  3d  April,  1830,  but  I  cannot  tLink  the 
law  so  unreasonable  as  to  say  he  became  a  trespasser."  See  also 
Magaw  V.  Lambert,  3  Barr,  444;  Greider's  Appeal,  5  Barr,  424. 


SURRENDER.  285 

*So  far  the  law  is  quite  clear  and  intelligible,    p^^^p., 
but(a)  of  late  years  there  has  been  a  consider-   '-         -" 

made,  during  a  current  year,  an  agreement  with  liis  landlord  that  the 
latter  should  grant  a  lease  to  him  and  to  a  third  person.  From  that 
time  the  third  person  entered  and  occupied  jointly  with  the  tenant.  It 
was  held,  that  the  agreement  and  the  joint  occupation  determined  the 
former  tenancy,  although  the  lease  contracted  for  was  never  granted. 
In  this  case  a  new  tenancy  was,  it  will  be  seen,  inferred  from  the  joint 
occupation  by  the  old  and  new  tenant;  although  no  new  lease  had 
been  actually  granted.  But,  a  mere  agreement  for  a  new  demise  will 
not  operate  as  a  surrender  of  an  existing  lease.  Foquet  v.  Moor,  7 
Exch.  870.  In  Doe  d.  Earl  of  Egremont  v.  Forwood,  3.  Q.  B.  627, 
(43  E.  C.  L.  R  897,)  the  Court  of  Queen's  Bench  was  of  opinion 
that  a  surrender  which  was  made  in  consideration  of  the  granting  of 
a  new  lease  took  effect,  although  the  new  lease  turned  out  to  be  in- 
valid, not  being  granted  in  accordance  with  the  leasing  power  under 
which  it  was  made.  But  this  doctrine  has  been  departed  from  by  the 
same  Court  in  some  later  cases.  See  Doe  d.  Earl  of  Egremont  v. 
Courtenay,  11  Q.  B.  702,  (63  E.  C  L.  R.  702,)  in  which  case  a  tenant 
for  life,  acting  under  a  leasing  power,  granted  a  new  lease  to  a  person 
who  was  already  in  possession  of  the  land  under  a  previous  lease,  and 
it  was  stated  in  the  new  lease  that  it  was  granted  in  consideration  of 
the  surrendering  up  of  the  former  lease,  which  surrender  ivas  therehy 
made  and  accepted  accordingly.  The  later  lease  was  invalid,  not 
being  in  conformity  with  the  leasing  power.    It  was  held,  under  these 

(a)  It  is  said  in  Rowan  v.  Lytle,  11  Wend.  617,  that  the  can- 
celling and  destroying  the  lease,  by  the  agreement  of  parties  will  not 
divest  the  interest  of  the  lessee,  that  the  New  York  Statute  requires 
a  deed  or  note  in  writing,  signed  by  the  parties.  The  case  was  of  a 
lease  for  eight  years,  which  required  a  writing  to  make  it  valid. 

The  acceptance  by  a  tenant  of  a  new  lease  of  the  same  pi-emises, 
during  the  term  of  the  first  lease,  is  deemed  a  virtual  surrender  of 
the  first  lease,  unless  there  are  facts  rebutting  such  presumption. 
Van  Renssalaer  v.  Penniman,  6  Wend.  569;  Livingston  v.  Potts^ 
16  Johns,  28 ;  Ilesseltine  v.  Seavey,  4  Shep.  212 ;  Smith  v.  Niver, 
2  Barb.  Sup.  Ct.  R.  180. 


286  LANDLORD    AND    TENANT. 

able  strusrffle  *to  extend  the  effect  of  a  sur- 
[2271  . 

^   '      ^    render  hy  operation  of  laio  to  cases  in  which  the 

tenant  has  not  himself  taken  a  new  lease,  but  has  put 
a  third  person  into  possession  of  the  premises,  and  that 
person  has,  with  his  own  concu-rrence,  and  the  concur- 
rence of  the  landlord,  been  treated  as  the  landlord's 
immediate  tenant.  The  most  remarkable  case  on 
this  subject  is   Thoynas  v.    (7oo7i,  2  B.  &  A.   119,  in 

circumstances,  that  the  first  lease  remained  in  force,  and  that  it  was 
immaterial  whether  the  second  lease  was,  at  the  time  of  the  demise, 
void  or  only  voidable  at  the  will  of  the  tenant  for  life.  The  Court 
explained  the  principle  upon  which  these  cases  depend,  in  the  follow- 
ing terms  :  ''  The  principle  laid  down  by  Lord  Mansfield  in  Wilson  v. 
Sewell,  4  Burr.  1980,  and  Davison  d.  Bromley  v.  Stanley,  ih.  2213, 
seems  to  us  the  true  one  j  that  where  the  new  lease  does  not  pass  an 
interest  according  to  the  contract,  the  acceptance  of  it  will  not  operate 
a  surrender  of  the  former  lease ;  that  in  the  case  of  a  surrender  im- 
plied by  law  from  the  acceptance  of  a  new  lease,  a  condition  ought 
also  to  be  understood  as  implied  by  law,  making  void  the  surrender 
in  case  the  new  lease  should  be  made  void;  and  that,  in  case  of  an 
express  surrender  so  expressed  as  to  show  the  intention  of  the  parties 
to  make  the  surrender  only  in  consideration  of  the  grant,  the  sound 
construction  of  such  instrument,  in  order  to  effectuate  the  intention 
of  the  parties,  would  make  that  surrender  also  conditional  to  be  void 
in  case  the  grant  should  be  made  void."  And  in  the  later  case  of 
Doe  d.  Biddulph  v.  Poole,  11  Q.  B.  713,  (G3  E.  C.  L.  R.  713,)  the 
same  principle  was  acted  upon,  and  the  acceptance  of  a  fresh  lease, 
which  had  been  avoided  contrary  to  the  intention  of  the  parties,  was 
held  not  to  amount  to  an  absolute  surrender  of  an  old  lease,  but  to 
be  a  surrender  conditioned  to  be  void,  if  the  new  grant  should  not 
take  effect.  The  Court  observed,  in  this  case,  that  as,  where  a  new 
lease  is  accepted,  a  surrender  is  presumed  only  for  the  purpose  of 
making  a  grant  operative  which  would  otherwise  be  without  effect,  it 
would  be  unreasonable,  where  the  grant  fails  contrary  to  the  intention 
of  the  parties,  to  hold  that  an  absolute  surrender  was  intended.  See 
also  as  to  surrenders  by  the  taking  of  a  new  lease,  Lyon  v.  Reed,  13 
M.  &  W.  285,*  and  the  cases  cited  post  p.  228,  note  i^. 


SURRENDER.  287 

which  it  was  held  that  three  circumstances,  namely, 

the  making  by  the  landlord  of  a  lease  incompatible 

with  the  existing  one,  the  assent  of  the  tenant  to  it, 

and  the  delivery  up  of  possession  to  the  lessee  named 

by  it,  amounted  altogether  to  a  surrender  by  operation 

of  law  of  a  tenancy  not  created  by  deed.     This  case 

was  followed  by  Johnstone  v.  Huddlestone^  4  B.  C.  922, 

(10  E.  C.  L.  R.   860,),^^  in  which   the  circumstances 

then  before  the  Court  were  held  not  to  amount  to  a 

surrender  by  operation  of  law.     That  case  was  most 

elaborately  argued  by  Baron  Parke  and  Mr.  Justice 

Patteson,  both  then  at  the  bar,  and  Sir  John  Bayley, 

in  delivering  judgment,  commented  on  the  previous 

case   of   Thomas  v.   Coo]i\  as  follows: — "That  ,case," 

said  his  lordship,  "  only  decided  that  where  there  had 

been  a  change  of  possession,  and  an  agreement  between 

the  landlord  and  tenant,  that  the  former  should  accept 

the  person  in  possession  as  his  tenant  from  a  given 

period,  the  law,  in  order  to  effectuate  the  intention  of 

the  parties,  *  would  work  a  surrender  of  the     ^^^^ 
...  ,  r  2281 

original  tenant's  interest. "^""^  ■-         -^ 

»  See  also  Doe  d.  Murrell  v.  Milward,  3  M.  &  W.  328.* 
^^  The  law  with  respect  to  surrenders  hi/  operation  of  law  has  been 
much  considered  in  some  later  cases  than  Thomas  v.  Cook,  and  the 
tendency  of  the  more  modern  decisions,  at  least  in  the  Court  of  Ex- 
chequer, has  been  to  narrow  very  much  the  application  of  the  rule 
laid  down  in  that  case,  if  not  to  shake  its  authority  altogether.  As 
this  is  a  subject  of  much  practical  importance,  which  has  led  to  some 
difference  of  opinion  between  the  Courts,  and  the  questions  relating 
to  it  cannot  be  considered  to  be  yet  altogether  settled,  it  may  be  con- 
venient to  refer  here  at  length  to  the  more  important  of  the  later  de- 
cisions. In  Lyon  v.  Reed,  13  M.  &  W.  285,*  the  Court  of  Ex- 
chequer examined  the  law  upon  this  head  in  a  very  elaborate  judg- 
ment. "  The  term  surrender  by  operation  of  law,"  said  the  Court  in 
this  case,  '<  is  properly  applicable  only  to  cases  in  which  the  owner  of 
a  particular  estate  has  been  a  party  to  some  act,  the  validity  of  which 


288  LANDLORD    AND    TENANT. 

*Since  Johnstone  v.  HiiddJestone.  the  point  has 
r*2291  •  .  . 

L         ^   repeatedly  occurred  in  a  variety  of  cases,  in 

he  is  by  law  afterwards  estopped  from  disputing,  and  which  would  not 
be  valid  if  his  particular  estate  had  continued  to  exist.  Thus,  if 
lessee  for  years  accepts  a  new  lease  from  his  lessor,  he  is  estopped 
from  saying  that  his  lessor  had  not  power  to  make  the  new  lease ', 
and,  as  the  lessor  could  not  do  this  until  the  prior  lease  had  been  sur- 
rendered, the  law  says  that  the  acceptance  of  such  new  lease  is  of  it- 
self a  surrender  of  the  former So,  if  tenant  for  years 

accepts  from  his  lessor  a  grant  of  a  rent  issuing  out  of  the  land  and 
payable  during  the  term,  he  is  thereby  estopped  from  disputing  his 
lessor's  right  to  grant  the  rent,  and  as  this  could  not  be  done  during 
his  term,  therefore  he  is  deemed  in  law  to  have  surrendered  his  term 
to  the  lessor.  All  the  old  cases  will  be  found  to  depend  on  the  prin- 
ciple to  which  we  have  adverted,  namely,  an  act  done  by  or  to  the 
owner  of  a  particular  estate  the  validity  of  which  he  is  estopped  from 
disputing,  and  which  could  not  have  been  done  if  the  particular  estate 
continued  to  exist.  The  law  there  says,  that  the  act  itself  amounts 
to  a  surrender.  In  such  case  it  will  be  observed  there  can  be  no 
question  of  intention.  The  surrender  is  not  the  result  of  intention. 
It  takes  place  independently,  and  even  in  spite  of  intention."  In  the 
same  case  the  Court  after  reviewing  the  earlier  decisions,  made  the 
following  observations  in  I'efereuce  to  Thomas  v.  Cook  :  "  It  is  a  mat- 
ter of  great  regret  that  a  case  involving  a  question  of  so  much  im- 
portance and  nicety  should  have  been  decided  by  refusing  a  motion 
for  a  new  trial.  Had  the  case  been  put  into  a  train  for  more  solemn 
argument,  we  cannot  but  think  that  many  considerations  might  have 
been  suggested  which  would  have  led  the  Court  to  pause  before  coming 
to  the  decision  at  which  they  arrived.  Mr.  Justice  Bayley,  in  his 
judgment,  says,  the  jury  were  right  in  finding  that  the  original  tenant 
assented,  because,  he  says,  it  was  clearly  for  his  benefit,  an  observa- 
tion which  forcibly  shows  the  uncertainty  which  the  doctrine  is  calcu- 
lated to  create.  The  acts  in  2'>c(is  which  bind  parties  hy  way  of  estop- 
pel are  but  few,  and  are  pointed  out  by  Lord  Coke.  Co.  Litt.  352  a. 
They  are  all  acts  which  anciently  really  were,  and  in  contemplation 
of  law  have  always  continued  to  be,  acts  of  notoriety,  not  less  formal 
and  solemn  than  the  execution  of  a  deed,  such  as  licery,  entry,  aarpt- 


SURRENDER.  289 

some  *of  which  the  circumstances  have  been   ^^^^,^^ 

r  2301 
held  to  amount    to  an   implied  surrender,  in    ^  -^ 

ance  of  an  estate,  and  the  like.  "Whether  a  party  had  or  had  not  con- 
curred in  an  act  of  this  sort,  was  deemed  a  matter  which  there  could  be 
no  difficulty  in  ascertaining,  and  then  the  legal  consequences  followed. 
But  in  M'hat  uncertainty  and  peril  will  titles  be  placed,  if  they  are 
liable  to  be  affected  by  such  accidents  as  those  alluded  to  by  Mr.  Jus- 
tice Bayley Perhaps  the  case  of  Thomas  i;.  Cook  itself, 

and  others  of  the  same  description,  might  be  supported  upon  the 
ground  of  the  actual  occupation  by  the  landlord's  new  tenants,  which 
would  have  the  effect  of  eviction  by  the  landlord  himself  in  super- 
seding the  rent,  or  compensation  for  use  and  occupation  during  the 
continuance  of  that  occupation.  But  we  feel  fully  warranted  in  not 
extending  the  doctrine  of  that  case,  which  is  open  to  so  much  doubt, 
especially  as  such  a  course  might  be  attended  with  very  mischievous 
consequences  to  the  security  of  titles."  In  Creagh  v.  Blood,  8  Irish 
Equit.  Hep.  688,  Sir  E.  Sugden  (when  Lord  Chancellor  of  Ireland) 
was  of  opinion,  although  it  was  not  necessary  to  decide  the  point  in 
that  case,  that  the  doctrine  of  Thomas  v.  Cook  could  not  be  applied  to 
a  surrender  of  a  freehold  interest,  and  he  appeared  to  assent  to  the 
reasoning  contained  in  the  judgment  in  Lyon  v.  Reed.  In  a  case 
in  the  Court  of  Common  Pleas  which  was  decided  before  Lyon  v. 
Reed,  and  which  appears  to  be  a  strong  case,  the  facts  were  that  two 
joint  lessors  had  demised  a  house  by  a  lease  in  writing  signed  by  both 
to  a  tenant  at  a  yearly  rent  payable  quarterly.  One  of  the  lessors 
never  interfered  af.er  signing  the  lease.  The  key  was  given  to  the 
wife  of  the  tenant,  and  he  entered  into  possession  ;  but  before  the 
first  quarter's  rent  became  due,  his  wife  delivered  the  key  back  to  the 
other  lessor,  there  having  been  some  dispute  as  to  the  arrears  of  rent 
which  were  due  to  the  superior  landlord  and  as  to  some  taxes  and 
rates  which  were  also  in  arrear.  It  was  held  that  the  delivering  back 
of  the  key  by  the  tenant  avinio  sjtrsian  reddendi,  and  the  acceptance 
of  it  by  the  lessor  to  whom  it  was  given,  amounted  to  a  surrender  by 
operation  of  law,  and  that  the  jury  were  warranted  in  finding  that 
the  other  lessor  was  bound  by  it.  See  also  Dodd  r.  Acklom,  6  M.  & 
G.  672,  (46  E.  C.  L.  R.  672,).  In  Nickells  r.  Atherstone,  10  Q.  B. 
944,  (59  E.  C  L.  R.  944,)  a  tenant  of  promises  under  an  agreement' 

19 


290  LANDLORD    AND    TENANT. 

others  not  to  be  sufficient  for  that  purpose.  It  is  easy 
to  see  why  the  point  should  have  so  often  occurred, 
since  it  is  obvious  that  the  question  to  whom  notice  to 
quit  ought  to  be  given,  and  against  whom  an  action 
for  the  rent  ought  to  be  brought,  may  both  depend  on 
it.  I  will  refer  to  the  latest  cases  in  which  it  has  come 
under  discussion.  They  are  Graham  v.  WhicJielo,  3 
Tyrwh.  201,  1  C.  &  M.  188;  E.  v.  Baiiburij,  1  A.  & 
E.  136,  (28  E.  C.  L.  R.  85,);  Walls  v.  Atcheson,  3 
Bing.  462,  (11  E.  C.  L.  R.  228,).  I  have  one  more 
observation  to  make  with  regard  to  this  class  of 
imphed  surrenders,  namely,  that  I  think  there  would 
r*OQn  ^^  considerable  difficulty  in  applying  the  *doc- 
'-  ^'  -■  trine  of  Thomas  v.  Coolc  to  the  case  of  a  term 
created  by  deed,  and  I  am  not  aware  that  it  ever  has 
been  so  applied;  and  I  should  strongly  recommend 
you,  should  any  case  turning  on  this  doctrine  occur  to 
you  in  practice,  not  to  assume  that  the  doctrine  will  be 
extended  by  the  Courts  a  whit  beyond  the  limits  of 
the  cases  already  decided;  for  the  whole  doctrine  is, 
to  say  the  least  of  it,  an  encroachment  on  the  Statute 

for  a  three  years'  occupation  removed  his  property  from  the  premises, 
and  left  them  in  the  first  year.  At  the  same  time  he  applied  to  the 
landlord  to  take  them  oflf  his  hands,  but  this  request  Avas  refused.  He 
then  asked  the  landlord  to  let  the  rooms  for  him,  and  at  a  later  period 
he  wrote  a  letter  to  the  landlord  authorising  him  to  let  the  premises 
to  any  other  person.  The  landlord  thereupon  let  the  rooms,  and  put 
a  new  tenant  into  possession.  The  Court  of  Queen's  Bench  held  that 
these  facts  amounted  to  a  surrender  by  operation  of  law,  and  it  ob- 
served that  although  it  entirely  concurred  in  the  actual  decision  in 
Lyon  V.  Reed,  it  did  not  assent  to  the  observations  made  in  the  judg- 
ment in  that  case  upon  Thomas  v.  Cook,  and  the  decisions  of  that 
class.  See  also  on  this  subject  Doe  d.  Hull  v.  Wood,  14  M.  &  W. 
682  f  Morrison  v.  Chadwick,  7.  C.  B.  266,  (62  E.  C.  L.  R.  266,) ; 
and  the  cases  cited,  ante,  p.  223,  note  ^. 


SURRENDER.  291 

of  Frauds,  and  one  which  is  regarded  by  the  Courts 
with  jealousy /^(a) 

There  is  one  more  observation  to  be  made  with 
regard  to  surrenders  in  general,  namely,  that  a  sur- 
render is  never  allowed  to  operate  injuriously  upon 
the  rights  of  third  parties.  I  mean  to  say,  that,  if  A. 
is  B.'s  landlord,  B.  may,  it  is  true,  surrender  his  estate 
to  A. ;  but  if  he  have,  since  its  commencement,  created 
some  minor  interest  out  of  it,  as,  for  instance,  if  he 
have  charged  it  with  an  annuity,  or  have  made  an 
under-lease,  he  cannot,  by  surrendering,  destroy  the 
charge  or  affect  the  estate  of  the  under-lessee,  (Sheph. 
Touch.  301)  for  it  is  obvious  that  if  he  could  do  so, 
the  grossest  injustice  and  fraud  might  be  committed 
upon  the  annuitant  or  under-tenant.^*(&) 

If,  however,  a  tenant  who  has  made  an  under-lease, 
surrenders,  although  he  cannot  prejudice  his  tenant's 

interest,  yet  he  himself  will  lose  the  rent  *he     ^ 

r  2321 
has  reserved  upon  the  under-lease ;  for  the  rent,    '-         -" 

as  I  have  before  explained,  is  incident  to  the  reversion, 
and  the  siuTenderoi?*  cannot  have  it,  as  he  has  surren- 
dered his  reversion  on  the  under-lease  to  his  immediate 
lessor;  nor  can  the  surrenderee  have  it,  for,  though 

^^  See  the  cases  cited  in  the  last  note. 

^*  See  also  the  judgment  of  Lord  Ellenborough  in  Doe  d.  Beadon 
V.  Pjke,  5  M.  &  S.  154. 

(a)  The  doctrine  of  Thomas  v.  Cook  appears  to  have  been  recog- 
nized in  several  American  cases.  See  Smith  v.  Niver,  2  Barb.  Sup. 
Ct.  R.  180;  Bailey  v.  Delaplaine,  1  Sandf.  Sup.  Ct.  R.  5;  Logan  v. 
Anderson,  2  Doug.  101.  In  Whitney  v.  Meyers,  1  Duer,  266,  it 
was  held  that  an  absolute  parol  lease,  made  by  the  landlord  to  a 
new  tenant,  during  the  term  of  a  written  lease  with  the  consent  of  the 
first  lessee,  amounts  to  a  surrender  of  the  first  lease. 

{h)  McKenzie  v.  Lexington,  4  Dana,  129. 


292  LANDLORD    AND    TENANT. 

the  reversion  to  which  it  was  incident  has  been  con 
veyed  to  him,  yet  as  soon  as  it  was  so  conveyed  to  him, 
it  merged  in  the  greater  reversion  of  which  he  was 
ah-eady  possessed,  and  became  totally  lost  and  swal- 
lowed up,  so  that  the  consequence  is,  that  neither  the 
surrenderor  nor  the  surrenderee  being  entitled  to  the 
rent,  the  under-lessee  holds  without  payment  of  any 
rent  at  all,  excepting  where  the  contrary  has  been 
expressly  provided  by  statute.-^^ 

Now  there  were  many  cases  in  which  leases,  espe- 
cially those  granted  by  Ecclesiastical  Persons,  were 
surrendered  merely  for  the  purpose  of  being  renewed ; 
and,  in  theSe  cases,  the  under-tenants  of  the  lessees 
*oQQ  would,  unless  they  could  have  been  *persuaded 
^  '  '  -'  to  concur  in  the  arrangement,  have  been  dis- 
charged from  their  respective  rents,  to  obviate  which 
it  is  now  enacted  by  stat.  4  Geo.  2,  c.  28,  s.  6,  that  in 
case  any  lease  shall  be  surrendered  in  order  to  be 
renewed,  the  new  lease  shall  be  as  valid  to  all  intents 
as  if  the  under-leases  had  been  likewise  surrendered 
before  the  taking  of  the  new  lease ;  and  that  the  reme- 

^^  It  is,  however,  now  provided  by  the  8  &  9  Vic.  c.  106,  s.  9,  that 
when  the  reversion  expectant  on  a  lease  of  any  tenements  or  heredit- 
aments of  any  tenure,  made  either  before  or  after  the  passing  of  the 
act,  is  surrendered  or  merges  after  the  1st  of  October,  1845,  the 
estate  which  fou^the  time  being  confers  as  against  the  tenant  under 
the  lease  the  next  vested  right  to  the  premises  is  to  be  deemed  the 
reversion  expectant  on  the  lease,  to  the  extent  and  for  the  purpose  of 
preserving  such  incidents  to,  and  obligations  on,  the  reversion  as,  but 
for  the  surrender  or  merger,  would  have  subsisted.  This  provision 
extends  both  to  England  and  to  Ireland,  but  not  to  Scotland.  It 
must  be  observed  with  reference  to  the  eflFect  of  a  surrender  upon  the 
position  of  the  surrenderor  that  his  liability  in  respect  of  personal 
covenants,  which  have  been  broken  before  the  surrender,  is  not  in 
any  way  affected  by  it.  See  The  Attorney  General  v.  Cox,  3  II.  of 
Lords'  C.  240. 


SURRENDER.  293 

dies  of  the  lessees  against  their  under-tenants  shall 
remain  unaltered,  and  the  chief  landlord  shall  have  the 
same  remedy  by  distress  and  entry  for  the  rents  and 
duties  reserved  in  the  new  lease,  so  far  as  the  same 
exceed  not  the  rents  and  duties  reserved  in  the  former 
lease,  as  he  would  have  had  in  case  the  former  lease 
had  still  continued.  See  for  a  decision  on  this  Act, 
Doe  d.  Polk  v.  Marchetti,  1  B.  &  Ad.  715,  (20  E.  C. 
L.  R.  662,). 

Next,  with  regard  to  the  determination  of  the 
tenancy  \y^  forfeiture.  I  have,  in  a  previous  Lecture, 
spoken  at  considerable  length  upon  the  ordinary  pro- 
viso for  re-entry  inserted  in  leases,  the  mode  in  which 
it  is  taken  advantage  of,  and  that  in  which  the  right 
to  take  advantage  of  it  may  be  waived.^^  But,  besides 
this  sort  of  forfeiture,  which  arises  out  of  express  pro- 
vision, the  tenant  will  commit  a  forfeiture  if  he  dis- 
claim and  deny  his  landlord's  title.  See  Bac.  Ab. 
Leases  and  Terms  for  Years,  (T.  2),  and  Doe  d.  Graves 
V.  Wells.  10  A.  &  E.  427,  (37  E.  C.  L.  R.  129,),  which 
last  case  shows  *that  the  disclaimer  which  occa-  ^ 
sions  a  forfeiture  must  not  be  by  mere  word  of  •-  '^  -• 
mouth.^'(a) 

16  See  cmfe,  pp.  108-114. 

1^  A  disclaimer  is  a  renunciation  by  the  lessee  of  his  character  of 
tenant,  either  by  setting  up  a  title  in  a  third  person  or  by  claiming 
title  in  himself.  See  the  judgment  of  the  Lord  Chief  Justice  Tindal 
in  Doe  d.  Williams  v.  Cooper,  1  M.  &  G.  139,  (39  E.  C.  L.  R.  381,). 
And  see  this  case,  Doe  d.  Davies  v.  Evans,  9  M.  &  W.  48  ;*  Doe  d. 
Phillips  V.  Ptollings,  4  C.  B.  188,  (56  E.  C.  L.  R.  188,);  and  Doe  d. 
Bennett  v.  Long,  9  G.  &  P.  773,  (38  E.  C  L.  R.  447,)  as  to  what 
facts  will  amount  to  evidence  of  a  disclaimer.     A  subsequent  distress 

(rt)  The  refusal  to  pay  rent,  and  disclaimer  of  the  lessor's  title, 
attornment  to  another,  or  assertion  by  the  lessee  of  title  in  himself, 


294  LANDLORD    AND    TENANT. 

Lastly,  as  to  the  determination  of  a  lease  by  rioiice 
to  quit.     This,   it  is   obvious,  applies  altogether  to  a 

Ly  the  landlord  appears  to  be  a  waiver  of  a  disclaimer.     Doe  d.  David 
V.  Williams,  7  C  &  P.  322,  (32  E.  C.  L.  R.  635,). (a) 


work  as  forfeiture  of  the  lease,  and  warrants  ejectment  upon  the  part 
of  the  landlord  without  notice  to  quit.  Jackson  v.  Vincent,  4  Wend. 
633  :  Fortier  v.  Balance,  5  Gilman,  41  ;  Jones  v.  Tatham,  8  Harris, 
398 ;  Stewart  v.  Roderick,  4  W.  &  S.  189  ;  Duke  v.  Harper,  6 
Yerg.  280;  Clark  v.  Everley,  8  W.  &  S.  226;  Doe  d.  Ellerbrock  v. 
rijnn,  1  C.  M.  &  R.  137. 

It  is  said  in  De  Lancey  v.  G-a  Nun,  12  Barb.  120,  and  in  Mont- 
gomery V.  Craig,  3  Dana,  101,  that  a  tenant  who  holds  under  a  written 
lease,  does  not  forfeit  his  lease  by  disclaiming  by  parol  his  landlord's 
title. 

If  the  tenant  attorns  to  a  third  party,  or  puts  a  third  party  in 
possession,  the  party  so  put  in  possession  stands  in  the  tenant's 
shoes,  and  can  avail  himself  of  no  defence  which  the  tenant  cannot. 
Before  advantage  can  be  taken  of  any  defect  in  the  landlord's  title 
by  the  tenant,  or  any  body  put  in  possession  by  him,  the  premises 
must  be  restored  to  the  landlord,  who  cannot  be  forced  by  any 
collusion  between  his  tenants  and  third  parties  to  prove  his  title. 
The  possession  he  has  parted  with  to  his  tenant,  he  is  entitled  to  have 
restored;  and  if  the  tenant,  without  giving  notice  to  his  landlord, 
confess  a  judgment  in  ejectment,  or  suffer  judgment  to  go  by  default, 
the  possession  thus  obtained  by  the  plaintiff  in  the  ejectment  will  not 


(a)  A  tenant  from  year  to  year,  who  had  agreed  to.  buy  his  land- 
lord's estate,  having  remained  in  possession  for  several  years,  without 
paying  either  rent  or  interest  on  the  purchase-money,  the  agent  of 
the  lessor  applied  to  him  to  give  up  possession;  to  which  he 
answered  that  he  had  bought  the  property  and  would  keep  it,  and  had 
a  friend  who  was  ready  to  give  him  the  money  for  it ;  held,  that  this 
was  no  disclaimer,  because  it  was  not  a  claim  to  hold  the  estate  on  a 
ground  necessarily  inconsistent  with  the  continuance  of  the  tenancy 
from  year  to  year.     Doe  d.  Gray  v.  Stanion,  1  M,  &  W.  695. 


{ 


NOTICE     TO    QUIT.  295 

yearly  tenancy,  or,  at  least,  to  those  tenancies  which 
are  in  the  nature  of  yearly  tenancies,  such  as  from 

avail  him  against  the  landlord.     Stewart  v.  Roderick,  4  Watts  & 
Sergt.  188. 

It  is  a  well  settled  rule  that  neither  the  tenant  or  any  one  claiming 
uader  him,  or  put  or  admitted  to  possession  by  him,  can  dispute  the 
landlord's  title.  Knight  v.  Smyth,  4  M.  &  S.  347,  in  which  case,  in 
1815,  Justice  Dampier  says,  "  It  has  been  often  ruled  that  neither 
the  tenant,  nor  any  one  claiming  by  him,  can  dispute  the  landlord's 
title.  This,  I  believe,  has  been  the  rule  for  the  last  twenty-five  years, 
and,  I  remember,  was  so  laid  down  by  Buller,  J.,  on  the  Western 
Circuit."  Jackson  v.  Harder,  4  Johns.  Rep.  202  ;  Same  v.  Whit- 
ford,  2  Caines,  215  ;  Brant  v.  Livermore,  10  Johns.  R.  358  ;  Jackson 
V.  Hinman,  10  Johns.  292  ;  Galloway  v.  Ogle,  2  Binn.  468;  Boyer 
V.  Smith,  5  Watts,  66  ;  Newman  v.  Rutter,  8  Watts,  54 ;  Cooper  v. 
Smith,  8  Watts,  536 ;  Rankin  v.  Tenbrook,  5  Watts,  386 ;  Reed  v. 
Shipley,  6  Vermt.  602  ;  Philips  v.  Robertson,  2  Overt.  399  ,  Jack- 
son V.  Stewart,  6  Johns.  34  ;  Graham  v.  Moore,  4  S.  &  R.  467 ; 
Moshier  v.  Reding,  3  Fairf.  478 ;  Jackson  v.  Stiles,  1  Cow.  575 ; 
Norton  V.  Sanders,  1  Dana,  14;  Binney  v.  Chapman,  5  Pick.  124; 
Phillips  V.  Rothwell,  4  Bibb.  33;  Turley  v.  Rogers,  1  A.  K.  Mar- 
shall, 245;  Heath  v.  Williams,  12  Shep.  (Maine)  209;  King  v. 
Murray,  6  Iredell,  62;  Byrne  v.  Beeson,  1  Doug.  179;  Lockwood  v. 
Walker,  3  McLean,  431;  Bank  of  Utica  v.  Mersereau,  3  Barb.  Ch. 
R.  528 ;  Mclntyre  v.  Patton,  9  Hump.  447 ;  Burke  v.  Hale,  4  Eng. 
328  ;  Newman  v.  Mackin,  13  S.  &  M.  383  ;  Howell  v.  Ashmore, 
2  Zabr.  261 ;  Kluge  v.  Lachenour,  12  Ired.  180 ;  Freeman  v. 
Heath,  13  Ired.  498;  Pope  v.  Hawkins,  16  Ala.  321;  Henly  v. 
Branch  Bank  at  Mobile,  16  Ala.  552 ;  Chambers  v.  Pleak,  6  Dana, 
426. 

Where  a  landlord  dies  before  the  expiration  of  the  term,  the 
tenants  become  tenants  of  the  heir,  and  can  no  more  dispute  the 
title  of  the  heir  than  that  of  the  deceased  landlord.  Blantin  v. 
Whitaker,  11  Humph.  313  ;  Williams  v.  McAliley,  Cheves,  200. 

The  rule  has  its  exceptions  :  for  instance,  when  there  has  been 
any  fraud  or  misrepresentation  used  to  induce  one  already  in  posses- 
sion of  land  to  accept  a  lease,  the  lessee  is  not  bound  by  the  rule. 
Hockcnbury  v.  Snyder,  2  W.  &  S.  240 ;  Newman  v.  Rutter,  8  Watts, 


296  LANDLORD    AND    TENANT. 

month  to  month,  or  week  to  week.  The  ordinary  case, 
however,  is  that  of  a  yearly  tenancy.     I  have  explained 

54  ;  G-leim  v.  Rise,  6  Watts,  44  ;  Isaac  v.  Clark,  2  G-ill,  1 ;  Miller 
V.  Bonsadon,  9  Ala.  817;  Baskin  v.  Seechrist,  6  Barr,  154  ;  Hamil- 
ton V.  Marsden,  6  Binn.  45 ;  Miller  v.  McBrier,  14  S.  &  R.  382 ; 
Thayer  v.  Society  of  United  Brethren,  8  Harris,  60. 

The  tenant  is  permitted  to  show  that  his  landlord's  title  has 
expired,  or  that  he  has  been  hona  fide  evicted  by  title  paramount. 
Walter  v.  Waterhouse,  2  Wm.  Saunds.  418,  note ;  Doe  v.  Seaton,  2 
Ci'ompt.  Mees,  Riscoe,  728 ;  De  Vatch  v.  Newsam,  3  Ham.  57 ; 
Jackson  v.  Rowland,  6  Wend.  666;  Lunsford  v.  Turner,  5  J.  J. 
Marsh,  104  ;  Gregory  v.  Crabb,  2  B.  Muuroe,  234 ;  Wells  v.  Mason, 
4  Scam.  84 ;  Swan  v.  Wilson,  1  A.  K.  Marshall,  99 ;  Randolph  v. 
Carlton,  8  Ala.  606;  Ryers  v.  Farwell,  9  Barb.  Sup.  Ct.  615; 
Howell  V.  Ashmore,  2  Zabr.  261 ;  Tilghman  v.  Little,  13  111.  64. 

The  origin  of  the  rule  seems  involved  in  some  obscurity.  It  did 
not  prevail  at  common  law  except  when  there  was  an  indenture, 
when  the  doctrine  of  estoppel  by  deed  applied.  See  Hamilton's 
Lessee  v.  Marsden,  6  Binney,  47.  Littleton  says,  in  treating  of 
tenant  for  term  of  years,  "And  where  the  lessee  entereth  by  force  of 
the  lease,  then  is  lie  tenant  for  term  of  years,  and  if  the  lessor  in  such 
case  reserve  to  him  a  yearly  rent  upon  such  lease,  he  may  choose 
for  to  distrain  for  the  rent  in  the  tenements  letten,  &c.  But  in 
such  case  it  behoveth  that  the  lessor  be  seized  in  the  same  tenements 
at  the  time  of  his  lease ;  for  it  is  a  good  plea  for  the  lessee  to  say 
that  the  lessor  had  nothing  in  the  tenements  at  the  time  of  the 
lease,  except  the  lease  be  made  by  deed  indented,  in  which  case 
such  plea  lieth  not  for  the  lessee  to  plead."  Co.  Lit.  lib.  i.  ch.  7, 
sect.  58,  43  h.  Coke's  comment  is,  "  The  reason  of  this  is,  for 
that  in  every  contract  there  must  be  quid  pro  quo  for  contractus  est 
quasi  actus  contra  actum,  and,  therefore,  if  the  lessor  hath  nothing  in 
the  land,  the  lessor  hath  not  quid  i^ro  quo,  nor  any  thing  for  which 
he  should  pay  rent."  The  first  trace  I  find  of  the  rule  among  the 
reporters  is  in  the  observations  of  Mr.  Justice  Dampier,  above  quoted 
in  Doe  v.  Smyth,  unless  it  be  a  casual  observation  of  Lord  Kenyon  in 
Cooke  V.  Loxley,  5  Term,  R.  5, 

The  rule  has  of  late  years  been  referred  to  the  doctrine  of  estoppel 
in   pais,  and  it  has  been  aptly  remarked   "  The   principle,   was,  of 


NOTICE     TO    QUIT.  297 

in  a  former  Lecture  on  what  principles  the  necessity 
of  a  notice  to  quit  was  originally  established,  and  at 
lohat  time  it  must  be  given,  namely,  half  a  year  before 
the  expiration  of  the  then  current  year  of  the  ten- 
ancy,^^  excepting  where  the  rent  is  payable  on  the 
usual  feast-days,  in  which  case  a  notice  on  or  before 
one  of  the  feast-days  in  the  earlier  half  of  the  tenancy, 
to  quit  on  the  feast-day  at  the  conclusion  of  the  tenancy 
is  sufficient.  Thus  notice  on  the  28  th  of  September  to 
quit  on  the  25th  of  March  then  next  is  good,  when  the 
tenant  entered  at  Lady  Day,  and  the  rent  is  payable  at 
that  day  and  at  Michaelmas.  Roe  d.  Diirant  v.  Doe^ 
6  Bing.  574,  (19  E.  C.  L.  E.  260,),  though  there 
are  fewer  than  one  hundred  and  eighty-twx)  days 
*between  the  28th  of  September  and  the  25th  ^^^ 
of  March.  See  Doe  v.  Kigliiley,  7  T.  R.  63;  •-  ^^^^ 
Howard  v.  Wemsley,  6  Esp.  53.^''(rt)     The  other  points 

"  Ante,  p.  21. 

^^  So,  notice  on  the  29th  of  September  to  quit  at  Lady-day  is  a 
good  half-year's  notice.     Doe  d.  Matthewson  v.  Wrightman,  4  Esp. 

necessity,  called  into  being  by  that  feature  of  the  action  of  ejectment 
which  requires  an  absolute  possessory  title  in  the  plaintiff,  and  makes, 
in  its  absence,  the  mere  fact  of  possession  decisive  in  favor  of  the 
defendant."  See  the  note  by  the  American  editor  to  Doe  v.  Oliver, 
2  Smith's  Leading  Cases,  541,  3d  Am.  ed.  This  view  has  been 
taken  by  the  late  American  cases.  See  the  most  recent  cases  cited 
above. 

(a)  There  are  some  peculiarities  about  the  law  regarding  notices 
to  quit,  as  held  in  several  adjudged  cases,  both  in  this  country  and 
in  England,  which  it  is  difficult  to  assign  to  any  principle.  Thus  in 
Doe  d.  of  Robinson  v.  Dobcll,  1  Q  B.  806,  (41  E.  C.  L.  R.  786,) 
the  premises  on  the  13th  of  August,  1838,  were  let  «for  one 
year  and  six  months  certain  from  the  date,"  and  it  was  further 
agreed  "that  three  calendar  months'  notice  shall  be  given  on 
either  side,  previous  to  the   determination  of  said  tenancy."     The 


.298  LANDLORD    AND    TENANT. 

*rclative  to  a  notice  to  quit,  relate  to  the  form 
^     '    ^    in  which  it  is  to  he  couched,  the  manner  in  which 

6 ;  Doc  d.  Harrop  v.  Green,  ib.  198.  The  parties  may,  as  is  obvious, 
stipulate  by  their  express  contract  for  any  length  of  notice.  A  notice 
to  quit  at  Michaelmas  may  be  construed  to  mean  Old  Michaelmas, 
"where  by  the  custom  of  the  country  the  tenancy  begins  at  that  time. 
Furley  v.  Wood,  1  Esp.  198 ;  but  a  notice  to  quit  at  Old  Michaelmas 
was  held  to  be  bad,  although  given  half  a  year  before  new  Michaelmas, 
vrhen  the  tenancy  was  under  a  deed,  made  since  the  alteration  of  the 
style,  and  which  fixed  the  feast  of  St.  Michael  as  the  period  for  its 
commencement.  See  Doe  d.  Spicer  v.  Lea,  11  East,  312,  and  Cadby 
V.  Martinez,  11  A.  &  E.  720,  (39  E.  C  L.  R.  211,).  Where  a 
tenant  holds  over  after  the  expiration  of  a  lease  or  agreement,  the 
resulting  yearly  tenancy  will  usually  be  deemed  to  have  commenced 
at  the  period  which  corresponds  with  the  original  entry,  and  the 
notice  to  quit  must  therefore  usually  be  given  with  reference  to  that 
period.  Thus  in  Berrey  v.  Lindley,  3  M.  &  Gr.  498,  (42  E.  C.  L. 
R.  263,) ;  a  tenant  entered  under  an  agreement,  which  was  invalid 
under  the  Statute  of  Frauds,  and  which  provided  for  a  term  of  five 
years  and  a  half  from  Michaelmas,  1823.  Negociations  were  after- 
wards entered  into  for  a  term  of  seven  years  from  the  expiration  of 
the  term  which  was  supposed  to  exist  under  the  agreement ;  the  rent 
to  be  increased,  and  the  landlord  agreeing  to  make  some  alterations 
on  the  premises.  The  alterations  were  made,  but  no  lease  was  exe- 
cuted. At  Michaelmas,  1829,  a  year's  rent  was  paid  at  the  increased 
rate,  and  subsequently  other  payments  were  made  on  the  same  foot- 
ing. It  was  held,  under  these  circumstances,  that  a  notice  to  quit  at 
Michaelmas  was  valid.  And  in  Doe  d.  Robinson  v.  Dobell,  1  Q.  B. 
806,  (41  E.  C.  L.  R.  786,)  where  the  premises  had  been  demised  for 
one  year  and  six  months,  certain,  from  the  loth  of  August,  at  a  rent 
payable  quarterly,  with  a  stipulation  for  a  three  months'  notice,  and 
at  the  expiration  of  the  term  the  tenant  had  held  over,  it  was  held 
that  a  three  months'  notice  to  quit  expiring  on  the  13th  of  August 
was  proper,  and  not  a  notice  expiring  at  the  period  at  which  the 

tenant  entered,  and  after  holding  to  the  end  of  the  term,  held 
over.  On  May  7th,  1840,  the  lesssor  of  the  plaintiff  gave  the 
defendant  notice  to  quit  "on  or    before  the    13th   day  of  August 


NOTICE    TO    QUIT.  299 

[*237] 


it  is  *to  he  served,  and  tJie  mode  i7i  which  it  may 
he  waived. 


original  tenancy  ended.     But,  where  the  assignee  of  an  under-lessee 
held  over,  after  the  expiration  of  an  under-lease,  which  determined  at 
a  time  different  from  that  at  which  the  original  tenancy  began,  it  was 
held  that  the  yearly  tenancy,  which  resulted  from  the  holding  over, 
must  be  taken  to  have  commenced  not  from  the  time  of  the  original 
entry  of  the  lessee,  but  from  the  time  at  which  the  under-lease  ex- 
pired.    Doe  d.  Buddie  v.  Lines,  11  Q.  B.  402,  (63  E.  C.  L.  B.  402,). 
Where  a  tenant  who  comes  in  in  the  middle  of  a  quarter,  afterwards 
pays  rent  for  the  half  quarter,  and  then  continues  to  pay  from  the 
commencement  of  the  succeeding  quarter,  his  tenancy  will  be  deemed 
to  commence,  so  far  as  relates   to  the  period  at  which   the  notice  to 
quit  must  be  given,  from  the  quarter-day  succeeding  his  entry,  not 
from  the  entry  itself.     Doe  d.  Holcomb  v.  Johnson,  6  Esp.  10 ;  Doe 
d.   Savage  v.  Stapleton,  3   C  &  P.  275,   (14   E.  C.  L.  R.   564,). 
But,  where   the  entry  takes  place  during  a  broken  quarter,  and  no 
rent  is  pai'cZ,  the  commencement  of  a  tenancy  will  be  reckoned  from 
the  day  at  which  the  occupation  actually  began.     Doe  d.  Cornwall  v. 
Matthews,  11  C.  B.  675,  (73  E.  C.  L.  R.  675,).     Where  a  house 
and  land  are  let  together,  to  be  entered  upon  at  different  times,  and  it 
does  not  appear,  from  the  terms  of  the  demise,  at  what  time  the  whole 
is  to  be  considered  to  be  let  together,  the  notice  to  quit  is  regulated 
by  the   time  of  the  entry  upon  the  principal  subject  matter  of  the 
demise  ;  and  it  is  a  question  of  fact  for  the  jury  which  is  the  principal 
and  which  the  accessorial  subject.      See  Doe  (/.  Strickland  v.  Spence, 
6  East,  120;  Doe  d.  Lord  Bradford  v.  Watkins,  7  East,  551 ;  Doe  d. 
Heapy  v.  Howard,  11  East,  498;  Doe  d.  Williams  v.  Smith,  5  A.  & 
E.  350,  (31  E.  C.  L.  R.  643,) ;   Doe  d.  Kindersley  ?;.' Hughes,  7  M. 
&  W.  139;*  and  Doe  d.  Davenport  v.  Rhodes,  11   M.  &  W.  600.* 
Where  the   time  at  which  the  tenancy  commenced  is  doubtful,  the 
notice  should  require  the  tenant  to  give  up  the  possession  at  the  period 
at  which  it  is  supposed  that  the  tenancy  ends,  and  then  proceed,  <'  or 
at  the  expiration  of  the  year  of  the  tenancy,  which  will  expire  next 


next,  or  at  the  expiration  of  the  current  year  of  your  tenancy,  which 
shall  expire  next  after  the  end  of  three  months  from  and  after  your 
being  served  with  this  notice."     The  Court  held  that  the  notice  was 


300  LANDLORD  AND    TENANT. 

With  regard  to  its  form.  It  is  not  necessary  that  a 
notice  to  quit  should  be  in  writing,  unless  the  parties 

after  half  a  year" — if  the  notice  is  a  six  months'  notice — "  from  the 
time  of  the  service  of  this  notice."  It  is  better  not  to  use  the  expres- 
sion curroit  year.  See  Doe  d.  Mayor  of  Richmond  v.  Morphett,  7  Q. 
B.  577,  (53  E  C.  L.  R.  577,)  cited  in  the  next  note.  A  tenancy 
from  year  to  year,  so  long  as  both  parties  please,  is  determinable  at 
the  end  of  the  first  as  well  as  of  any  subsequent  year,  by  notice,  unless 
upon  the  creation  of  the  tenancy  the  parties  use  words  which  show 
that  they  contemplate  a  tenancy  for  two  years  at  least.  Doe  d. 
Clarke  v.  Smaridge,  7  Q.  B.  957,  (53  E.  C.  L.  R.  957,) ;  and  see 
Denn  d.  Jacklin  v.  Cartwright,  4  East,  81  ;  Doe  d.  Chadborn  v. 
Green,  9  A.  &  E.  658,  (36  E.  C.  L.  R.  238,)  ;  Reg.  v.  Inhabitants 
of  Chawton,  1  Q.  B.  247,  (41  E.  C  L.  R.  523,)  ;  and  Doe  d.  Monck 
V.  G-eekie,  5  Q  B.  841,  (48  E.  C  L.  R.  841,) ;  as  to  what  circum- 
ptances  are  sufficient  to  show  that  the  parties  intend  that  the  tenancy 
shall  last  for  two  years  certain.  It  is  doubtful  whether,  in  the  absence 
of  evidence  of  a  contract  or  usage  requiring  a  notice  to  quit,  a  notice 
is  necessary  to  determine  an  ordinary  weekly  hiring  of  apartments. 
Huffell  V.  Armistead,  7  C.  &  P.  56,  (82  E.  C.  L.  R.  497,) ;  Towne  v. 
Campbell,  3  C.  B.  921,  (54  E.  C.  L.  R.  921,). 

right ;  that  the  three  months'  notice  must  be  calculated  with  reference 
to  the  original  commencement  of  the  tenancy,  and  not  with  reference 
to  the  expiration  of  the  term.  If  a  tenancy  from  year  to  year  exist, 
it  is  held  in  England  that  six  months'  notice  expiring  with  the  end  of 
the  year,  is  necessary  to  terminate  the  tenancy ;  and  that  the  right 
to  this  notice  is  mutual,  {  e.,  if  the  landlord  wishes  to  terminate  the 
tenancy,  he  must  give  his  tenant  the  six  months'  notice.  Kingsbury 
V.  Collins,  4  Bing.  202,  (13  E.  C  L.  R.  467,) ;  Izon  v.  Gorton,  5 
Ring.  N.  C.  501,  (35  E.  C  L  R.  198,).  If  the  tenant  wishes  to  go, 
he  must  give  his  landlord  the  full  six  months'  notice  of  his  intention 
to  quit.  Johnstone  v.  Huddlestone,  4  Barnwell  &  Cress.  923,  (10 
E.  C.  L.  R.  860,) ;  Bessell  v.  Landsberg,  7  Adol.  &  Ellis,  638,  (53 
E.  C.  L.  R.  637,). 

The  American  cases  agree  as  regards  the  necessity  of  notice  by  the 
landlord  to  determine  the  tenancy,  though  there  is  a  difference  in  the 
States  as  to  the  length  of  notice  required. 


NOTICE     TO     QUIT.  301 

have  expressly  stipulated  that  it  shall  be  so.     Timmins 
V.   EowUson,    3    Burr.    1603;    Doe   v.    Crick,    5    Esp. 


Six  m(5^ths  is  the  rule  in  Yermont,  New  Jersey,  and  Kentucky. 
Hanchet  v.  Whitney,  1  Verm.  315;  Den  v.  Drake,  2  Green,  523; 
Den  V.  Blair,  3  Green,  181;  Moorehead  v.  Watkyns,  5  B.  Munroe, 
228. 

Three  months  is  all  that  is  required  by  the  laws  of  J*ennsylvania 
and  South  Carolina.  Hutchinson  v.  Potter,  1  Jones,  472  ;  Brown 
V.  Vanhorn,  1  Binney,  334 ;  McCanna  v.  Johnson,  7  Harris.  4o4 ; 
Godard  v.  Railroad  Co.  2  Rich,  346.  The  notice  must  be  given 
three  months  before  the  end  of  the  year.  The  tenancy  cannot  be 
determined  at  any  other  time.  If  the  notice  is  not  so  given  the 
moment  another  year  begins,  the  tenant  has  a  right  to  hold  to  the 
end  of  it. 

With  regard  to  notice  by  the  tenant,  very  few,  if  any,  cases  are 
to  be  found  in  the  American  books. 

Cooke  V.  Neilson,  in  Pennsylvania,  is  the  only  one  known  to  the 
writer.  It  was  there  held  that  the  tenant  may  leave  at  the  end  of 
the  year  without  notice  to  his  landlord.  This  case  originated  in  the 
District  Court  for  the  City  and  County  of  Philadelphia,  and  is  to  be 
found  in  Brightly's  N.  P.  Cases,  463,  The  case  is  remarkable  as 
containing  a  very  able  argument  by  the  President  of  the  Court,  Judge 
Sharswood,  against  the  judgment  which  was  entered.  The  case  was 
taken  to  the  Supreme  Court,  and  in  10  Barr,  41,  is  said  to  have  been 
affirmed  by  a  divided  Court. 

When  there  is  a  demise  for  a  fixed  period,  and  the  tenant  holds 
over,  the  rule  in  New  York  and  Pennsylvania  is  that  he  is  either  a 
trespasser  or  a  tenant  on  the  terms  of  the  old  lease,  at  the  option  of 
the  landlord,  and  he  is  bound  for  a  year's  rent.  Conway  v.  Stark- 
weather, 1  Denio,  113;  Hemphill  v.  Flyun,  2  Barr,  144.  And 
when  a  lease  is  for  one  year  or  other  term  certain,  a  notice  to  quit  is 
not  necessary.  Den  v.  Adams,  7  Halst.  99 ;  Bedford  v.  McElherron^ 
2  S,  &  R.  49  ;  Mosheir  ?;.  Reding,  3  Fair.  478  ;  Logan  v.  Herron,  8 
S.  &  R.  459  ;  Clapp  v.  Paine,  6  Shep.  264  ;  Dorrell  v.  Johnson,  17 
Pick,  263;  Allen  v.  Jaquish,  21  Wend.  628;  Preble  v.  Hay,  32 
Maine,  456 ;  Walker  v  Ellis,  12  111.  470  ;  Pierson  v.  Turner,  2 
Carter,  123 ;  Lesley  v.  Randolph,  4  Rawle,  126. 


302  LANDLORD    AND    TENANT. 

196.^°  The  Courts  are  very  liberal  in  construing 
notices  to  quit,  provided  they  be  so  worded  that  the 
tenant  cannot  mistake  the  object.  Thus,  a  notice  to 
quit  was  once  held  good,  though  dated  in  a  wrong  year ; 
in  that  case,  to  be  sure,  the  mistake  was  verbally  cor- 
rected at  the  time  of  service.  Doe  v.  Kightley,  1  T.  E,. 
63.     See  also  Doe  v.  CuUi/ord,  4  D.  &  R.  248,  (16  E. 

C.  L.  R.  202,),  and  Doe  d.  Cox  v. ,  4  Esp.  185,  in 

which  a  notice  to  quit  the  Waferman''s  Arms  was  held 
a   good   notice  to  quit   the  Bricklayers^  Arms,  being 

*served  on  the  right  person,  and  there  beinoj 
r*2381  or'  o 

*-  -'no  house  called  the  Waterman^s  Arms  in  the 

parish.^^     I  do  not  cite  these  cases  for  the  *pur- 
r*2391  .  .  p       . 

•-         ^   pose  of  encouraging  negligence  in  the  framing 

2°  A  notice  signed  by  one  of  several  joint  tenants  on  behalf  of  the 
others  is  sufficient  to  determine  a  yearly  tenancy  with  respect  to  all 
of  them  ;  for  where  by  a  joint  demise  joint  tenants  create  a  tenancy 
from  year  to  year,  the  true  character  of  the  tenancy  is,  not  that  the 
tenant  holds  of  each  the  share  of  each  so  long  as  he  and  each  shall 
please,  but  that  he  holds  the  icTiole  of  all  so  long  as  he  and  all  shall 
please.  See  Doe  d.  Aslin  v.  Summersett,  1  B.  &  Ad.  135,  (20  E.  C. 
L.  R.  427,).  And  a  notice  given  by  a  person  authorised  by  one  of 
several  lessors,  who  are  joint  tenants,  determines  the  tenancy  as  to 
all.  Doe  d.  Kindersley  v.  Hughes,  7  M.  &  W.  139  ;*  see  also  Alford 
V.  Vickery,  Car.  &  Marsh,  280,  (41  E.  C.  L.  R.  156,)  and  Doe  d. 
Bailey  v.  Foster,  3  C.  B.  215,  (54  E.  C.  L.  R.  215,). 

21  See  also  Doe  d.  Armstrong  v.  Wilkinson,  12  A.  &  E.  743,  (40 
E.  C.  L.  R.  368,)  where  a  notice  to  quit  misdescribed  the  parish  in 
which  the  premises  were  situated,  mentioning  by  mistake  the  adjoin- 
ing parish,  and  it  was  held,  after  a  verdict  in  ejectment  for  the  land- 
lord, that  the  variance  was  not  material,  the  tenant  not  having  shown 
that  he  held  more  than  one  farm  under  the  landlord,  or  that  he  was 
misled  by  the  mistake.  But,  although  notices  to  quit  are  construed 
reasonably,  and  a  literal  construction  will  not  be  adopted,  if  it  leads 
to  an  absurd  result,  and  the  words  will  fairly  bear  another  meaning, 
the  Courts  will  not  adopt  a  construction  at  variance  with  the  clear  lan- 
guage of  the  notice  merely  because  otherwise  it  would  be  bad.     See 


NOTICE    TO    QUIT.  303 

of  notices  to  quit ;  for  there  is  no  doubt  that  in  framing 
any  document,  however  liberal  the  interpretation  the 
Courts  are  in  the  habit  of  putting  upon  it  may  be,  the 
best  plan  is  to  proceed  as  if  the  very  strictest  interpre- 
tation were  to  be  given  to  it.     For  instance,  would  any 

Doe  d.  Williams  v.  Smith,  5  A.  &  E.  350,  (31  E.  C.  L.  E.  643,) ; 
and  Doe  d.  Mayor  of  Richmond  v.  Morphett,  7  Q.  B.  577,  (53  E.  C. 
L.  R.  577,).  In  the  latter  of  these  cases  a  tenant  from  year  to  year 
held  from  Martinmas  to  Martinmas.  A  notice  to  quit  was  given  to 
him  ou  the  21st  of  October  to  quit  on  the  13th  of  May  then  next, 
or  upon  such  other  day  or  time  as  the  current  year  for  which  he  held 
should  expire.  It  was  held,  that  this  notice  was  bad,  for  it  could  not 
be  good  for  May,  and  the  current  year  would  expire  in  November,  a 
short  time  after  the  notice;  and  the  Court  observed  that  it  did  not 
think  that  Doe  v.  CuUiford  cited  in  the  text  was  law.  And  in  Mills 
V.  Goff,  14  M.  &  W.  72,*  a  very  strict  construction  was  put  upon  a 
notice.  In  this  case,  a  tenancy  from  year  to  year  had  begun  on  the 
11th  of  October,  and  a  notice  was  given  to  the  tenant  in  June,  1840, 
requiring  him  to  quit  the  premises  <' on  the  11th  October  now  next 
ensuing,  or  such  other  day  and  time  as  your  said  tenancy  may  expire 
on."  It  was  held,  that  this  notice,  which  was  obviously  not  good,  as 
a  three  months'  notice,  was  not  even  sufficient  for  the  year  ending  on 
the  11th  of  October,  1841,  as  it  did  not  give  to  the  tenant  sufficient 
information  that  the  landlord  meant  it  to  operate  as  a  notice  for  the 
subsequent  year.  A  notice  to  quit  requiring  the  tenant,  in  the  alter- 
native, to  quit  or  else  agree  to  pay  double  rent,  is  not  sufficient.  But, 
it  is  otherwise  if  the  notice  requires  him  to  quit,  and  adds,  that  if  he 
does  not  the  landlord  will  insist  upon  double  rent ;  for,  in  the  latter 
case,  no  option  is  given  to  the  tenant  to  enter  into  a  new  contract. 
Doe  d.  Matthews  v.  Jackson,  1  Dougl.  175;  Doe  d.  Lyster  v.  Gold- 
win,  2  Q.  B.  143,  (42  E.  C.  L.  R.  610,).  A  notice  given  by  an  un- 
authorized agent  cannot  be  adopted  by  the  landlord  after  the  proper 
time  for  giving  it  has  elapsed,  for  a  notice  to  quit  must,  to  be  valid, 
be  such  that  the  tenant  may  safely  act  upon  it  at  the  time  when  he 
ought  to  receive  it.  See  the  case  last  cited.  Where  a  written  notice 
is  defective,  the  jury  may  not  be  asked  whether,  from  the  landlord's 
conduct,  they  believe  that  he  understood  it  to  refer  to  the  right 
period.     Cadby  v.  Martinez,  11  A.  &  E.  720,  (89  E.  C.  L.  R.  211,). 


304  LANDLORD    AND    TENANT. 

body  in  his  senses  draw  a  promissory  note  thus,  "  Bor- 
rowed of  A.  B.  £50,  to  he  repaid  in  one  montli^^''  merely 
because  it  was  once  held  that  such  an  irregular  form  of 
words  amounted  to  a  promissory  note;"^ — but  I  cite 
them  for  the  purpose  of  showing  that,  practically,  there 
is  less  reason  than  in  most  cases  of  informality,  for 
giving  up  a  matter  as  hopeless  where  the  informality 
consists  in  the  wording  of  a  notice  to  quit,  (a) 

With  regard  to  the  service  of  the  notice.  It  is  suffi- 
cient to  deliver  and  explain  it  to  the  servant  of  the 
tenant  at  his  dwelling-house,  even  though  the  dwell- 
ing-house be  not  situated  upon  the  demised  premises. 
Jones  V.  Harsh,  4  T.  II.  464 ;  Doe  v.  Dunbar,  M.  &  M. 
10,  (22  E.  C.  L.  R.  459,).  If  there  be  joint  tenants, 
service  on  one  of  them  furnishes  presumptive  evidence 
that  it  arrived  at  the  hands  of  the  other.  Doe  v.  Wcd- 
^  hins,  7  East,  551 ;  '^Doe  v.  Crich,  5  Esp.  196. 

^         ^   Where  the  tenant  happens  to  be  a  corporation, 

22  See  the  cases  cited  in  Bjles  on  Bills,  Chapter  III. 

(a)  When  a  notice  to  quit  is  given  under  a  power  which  requires 
the  notice  to  be  in  writing,  the  notice  must  be  in  writing.  Legg  d. 
Scott  V.  Benion,  Willes,  43  ;  Right  d.  Fisher  v.  Cuthell,  5  East.  491. 
A  notice  to  quit  must  be  absolute.  A  notice  demanding  possession, 
and  declaring,  if  possession  is  not  given  bj  a  certain  day,  rent,  at  a 
given  rate,  will  be  claimed,  is  not  sufficient.  Doe  d.  Matthews  v. 
Jackson,  1  Doug.  175  ;  Doe  d.  Lyster  v.  Goldwin,  2  Q.  B.  143,  (42 
E.  C.  L.  R.  610,);  Ayres  v.  Draper,  11  Miss.  548.  The  notice 
must  be  given  by  the  party  entitled  to  enter,  or  his  properly  autho- 
rised agent.  A  notice  by  an  unauthorised  agent  cannot  be  made  good 
by  an  adoption  of  it  by  the  principal  after  the  proper  time  for  giving 
it.  Doe  d.  Lyster  v.  Goldwin,  2  Adol.  &  Ellis,  143,  (42  E.  C.  L.  R. 
610,);  Doe  d.  Mann  v..  Walters,  10  B.  &  C  626,  (21  E.  C.  L.  R. 
265,).  There  may  be  an  implied  authority,  and  whether  there  is  or 
not  is  for  the  jury.  Manb  v.  Walters.  See  also  Goodtitle  v.  Wood- 
ward, 3  B.  &  A.  689,  (5  E.  C.  L.  R.  396,). 


NOTICE     TO    QUIT.  305 

as  it  is  obviously  impossible  that  there  can  be  any  per- 
sonal service,  notice  may  be  served  upon  one  of  its  offi- 
cers.    Doe  V.  Woodmhn,  8  East,  228.^^(a) 

23  "Where  a  notice  to  quit  was  put  under  the  door  of  the  house,  but 
it  was  shown  that  it  had  come  to  the  hands  of  the  tenant  before  the 
time  at  which  it  was  necessary  that  it  should  be  given,  it  was  held, 
that  a  sufficient  service  was  proved.  Alford  v.  Vickerj,  Car.  &  Marsh, 
280,  (41  E.  C.  L.  K  156,).  In  Stapylton  v.  Clough,  2  E.  &  B.  933, 
(75  E.  C.  L.  R.  938,)  an  agent,  who  was  usually  employed  by  a  land- 
lord to  serve  notices  to  quit,  signed  an  indorsement  upon  a  duplicate 
of  a  notice  stating  that  he  had  served  it  on  the  tenant,  and  afterwards 
said,  in  coversation,  that  he  had  delivered  the  notice  to  another  person. 
It  was  held,  that  this  oral  statement  was  not  evidence  after  the  death 
of  the  agent,  since  it  did  not  appear  to  have  been  made  in  the 
ordinary  course  of  his  business,  his  duty  being  completed  when  he 
had  signed  the  written  memorandum. 

(a)  In  Neville  v.  Dunbar,  M.  &  M.  10,  (22  E.  C.  L.  R.  459,)  Mr. 
Neville's  attorney  went  on  the  22d  of  March  to  the  defendant's 
house,  and  there  served  two  copies  of  a  notice  to  quit,  one  on  the 
servant,  the  other  on  a  lady  there.  It  was  attempted  to  show  that 
both  the  lady  and  the  servant,  on  whom  the  notices  were  served, 
were  dead ;  and  it  was  agreed  that,  in  that  case,  as  the  defendant 
would  be  unable  to  call  them  to  prove  that  they  did  not  communicate 
the  notice  to  him  according  to  the  course  suggested  by  Buller,  J.,  in  Doe 
d.  Griffiths  V.  Marsh,  4  T.  R.  464,  and  as  the  sufficiency  of  the  notice 
was  treated,  both  in  that  case  and  in  Doe  d.  Duross  v.  Lucas,  5  Esp. 
153,  and  in  Doe  d.  Lord  Bradford  v.  Watkins,  7  East.  553,  as  depending 
on  the  presumption  that  it  came  to  the  tenant's  hands,  there  would 
be  no  sufficient  evidence  that  it  did  so  to  entitle  the  plaintiff  to  a 
verdict.  The  proof,  however,  failed  as  to  the  servant.  Abbott,  Lord 
C.  J.,  said,  "I  have  no  doubt  that  the  service  of  the  notice  was 
sufficient.  The  question  does  not  arise  here,  for  the  servant  might  be 
called,  but  I  have  no  doubt  of  the  absolute  sufficiency  of  the  notice ; 
were  it  to  be  held  otherwise,  a  landlord  would  have  no  means  of 
determining  a  tenancy  if  his  tenant  happened  to  be  absent  from  his 
house  at  the  time  when  it  was  necessary  to  serve  the  notice."  See 
Widger  v.  Browning,  2  Carr.  &  P.  523,  (12  E.  C.  L.  R.  711,)  where 

20 


306  LANDLORD    AND    TENANT. 

Lastly,  with  regard  to  a  waiver.  We  have  abeacly 
seen  that  a  forfeiture  may  be  tvaived  by  the  receipt  of 
rent  which  fell  due  subsequently  to  the  time  at  which 
the  forfeiture  inciu'red.^^  So  may  the  right  to  take 
advantage  of  a  notice  to  quit.  Goodriglit  v.  Corclwent, 
6  T.  R.  219;  Doe  v.  Batten,  Cowp.  243.  So  a  distress 
for  rent  which  accrued  due  after  the  expiration  of  the 
notice  is  a  waiver  of  the  right  to  take  advantage  of  it, 
for  it  affirms  the  tenancy  to  be  a  subsisting  relation. 
Zoiich  V.  Willingale,  1  H.  Bl.  311.'^'  Nay,  the  right  to 
take  advantage  of  a  notice  to  *quit  may,  it  is 
"-  -"  held,  be  waived  by  a  subsequent  notice  to  quit 
at  a  period  after  the  expiration  of  the  former;  for, 
though  the  object  of  both  is  the  same,  namely,  to  oust 
the  tenant,  yet  the  latter  recognises  the  existence  of  a 

24  Ante,  p.  109. 

2^  See  as  to  this,  ante,  p,  110,  note  ^i^  and  p.  114,  note  ^*.  But 
the  tenant  does  not  waive  the  notice  to  quit  by  holding  o'ver  after  its 
expiration;  and  the  landlord  cannot,  in  this  case,  distrain  without 
some  evidence  of  a  renewal  of  the  tenancy.  Jenner  v.  Clegg,  1  M. 
&  Rob.  213 ;  Alford  v.  Vickery,  Car.  &  Marsh,  280,  (41  E.  C.  L. 
R.  156,). 

it  is  said  that  personal  service  of  notice  is  not  generally  necessary. 
In  Doe  V.  Lucas  the  notice  was  not  delivered  to  any  one,  but  simply 
left  on  the  premises,  which  did  not  afford  sufficient  probability  that 
the  defendant  had  ever  actually  received  it. 

The  notice  must  be  given  to  the  tenant,  not  to  the  sub-tenant. 
Pleasant  d.  Hayton  v.  Benson,  14  East.  234.  The  notice  to  his 
own  lessee  will  enable  the  landlord  to  recover  against  the  sub-lessee. 
Roe  V.  Wiggs,  2  N.  R.  330.  And  where  the  original  tenant  has 
quitted,  and  another  has  taken  possession,  it  will  be  presumed,  in  the 
absence  of  any  evidence  to  the  contrary,  that  the  latter  has  come  in 
as  assignee  of  the  former,  though  he  has  never  paid  rent,  and  notice 
served  on  such  assignee  will  be  good.  Doe  d.  Morris  v.  Williams,  6 
B.  &  C.  41,  (13  E.  C.  L.  R.  31,).     Doe  v.  Murless,  6  M.  &  S.  110. 


NOTICE    TO    QUIT.  307 

tenancy  at  a  period  subsequent  to  that  at  which  the 
former,  if  operative,  would  have  determined  it.  Doe  v. 
Palmer,  16  East,  53.  But  it  was  held  otherwise,  where 
the  second  notice  to  quit  was  not  served  till  an  eject- 
ment had  been  brought  against  the  tenant  to  enforce 
the  former  one,  for  the  Court  said  that  it  was  impos- 
sible for  the  plaintiff  to  suppose  that  his  landlord 
intended  to  waive  the  first  notice  when  he  knew  that 
the  landlord  was,  on  the  foundation  of  that  very  notice, 
proceeding  by  an  ejectment  to  turn  him  out.  Doe  v. 
HumpTiveys,  2  East,  237.  For  other  cases  in  which  the 
question  of  waiver  or  no  waiver  has  arisen,  you  may 
consult  Doe  v.  Steel,  3  Camp.  117;  Doe  v.  Inr/Iis,  3 
Taunt.  54;   Whiteacre  v.  Symonds,  10  East,  13.^^, 

Now,  supposing  the  tenancy  to  be  determined,  whe- 
ther by  efflux  of  time,  by  forfeiture,  by  surrender,  or  by 
notice  to  quit — what  are  the  mutual  rights  of  the  land- 
lord and  tenant  on  its  termination  %  In  the  first  place, 
the  landlord  has  a  right  to  the  possession  of  the  pre- 
mises ;  and  he  *may  enter  on  them  peaceably, 
if  he  can  succeed  in  doing  so;  but  if  the  ^  ^  "-' 
tenant  hold  over,  and  he  break  in  forcibly,  so  as  to 
endanger  a  breach  of  the  peace,  he  runs  the  risk  of  an 
indictment.  See  the  judgment  of  Lord  Tenterden  in 
R.  V.  Smyth,  1  M.  &  Rob.  155.  And  the  Court  of 
Common  Pleas  has  lately  held  (one  Judge,  however, 
dissenting)  that  he  is  liable  also  to  an  action,  though 
it  was  formerly  thought  otherwise,  and,  perhaps,  cannot 
be  even  now  considered  settled  without  the  decision  of 
a  Court  of  Error.     Newton  v.  Harland,  1  M.  &  Gr. 


^°  A  demand  of  rent  accruing  due  subsequently  to  the  expiration 
of  a  notice  to  quit,  is  not  necessarily  a  waiver  of  the  notice.  Whether 
it  is  so,  or  not,  is  a  question  of  intention  which  must  be  left  to  the 
jury.     Elyth  v.  Dennett,  18  C.  B.  17S,  (76  E.  C.  L.  R.  17«;j. 


308  LANDLORD    AND    TENANT. 

64-1,    (39   E.    C.    L.    R.    581.).''(rt)    In    such   cases, 

^  *therefore,  the   landlord's  safest  course  is   to 

^         ^   resort  to  legal  proceedings ;  and  he  may  either 

2^  The  judges  who  decided  Newton  v.  Harland  were  the  Lord  Chief 
Justice  Tindal,  Mr.  Justice  Bosanquet,  aud  Mr.  Justice  Erskine.  Mr. 
Justice  Coltman  differed  from  the  other  judges,  sajing  that  in  his 
opinion,  although  in  these  cases  the  law  would,  for  the  preservation  of 
the  peace,  punish  for  the  forcible  entry,  yet  the  tenant  at  sufferance, 
being  himself  a  wrong-doer,  could  not  be  heard  to  complain  in  a  civil 
action  for  that  which  was  the  result  of  his  own  misconduct  and  injus- 
tice. This  opinion  has  received  considerable  support  in  later  cases, 
although  Newton  v.  Harland  cannot  be  said  to  have  been  actually 
overruled.  In  Harvey  v.  Brydges,  14  M.  &  W.  437,*  the  point  de- 
cided in  Newton  v.  Harland  did  not  arise ;  but  Baron  Parke  observed, 
that  if  it  were  necessary  to  decide  it,  he  should  have  no  difficulty  in 
saying,  that  where  a  breach  of  the  peace  is  committed  by  a  freeholder, 
who,  in  order  to  get  into  possession  of  his  land,  assaults  a  person 
wrongfully  holding  possession  of  it  against  his  will,  although  the  free- 
holder may  be  responsible  to  the  public  in  the  shape  of  an  indictment 
fir  a  forcible  entry,  he  is  not  liable  to  the  other  party ;  and  that 
learned  judge  added,  that  he  could  not  see  how  it  was  possible  to 
doubt  that  it  is  a  perfectly  good  justification  to  say  that  the  plaintiff 
was  in  possession  of  the  land  against  the  will  of  the  defendant,  who 
was  owner,  and  that  he  entered  upon  it  accordingly;  even  though,  in 
BO  doing,  a  breach  of  the  peace  was  committed.  See  also  the  judg- 
ment of  the  Lord  Chief  Justice  Wilde,  in  Wright  v.  Burroughes,  3 
C.  B.  699,  (54  E.  C.  L.  B.  699,)  in  which  case,  however,  there  was 
no  forcible  entry;  Davison  v.  Wilson,  11  Q.  B.  890,  (63  E.  C  L.  R. 
890,)  and  Davis  v.  Burrell,  10  C.  B.  825,  (70  E.  C.  L.  R.  825,)  where 
Mr.  Justice  Cresswell  observed,  that  the  doctrine  of  Newton  v.  Har- 
land had  been  very  much  questioned. 

(a)  The  doctrine  of  Mr.  Justice  Coltman  in  Newton  v.  Harland, 
and  of  Baron  Park  in  Harvey  v.  Bridges,  seems  to  be  held  in  several 
American  cases,  and  it  certainly  appears  the  more  reasonable  doc- 
trine. Overdeer  v.  Lewis,  1  Watts  &  S.  90;  Ives  v.  Ives,  13 
Johns.  235;  Hyatt  v.  Wood,  4  Johns.  150;  V/alton  v.  File;  1 
Dev.  &  Bat.  567;    Beecher   v.    Parmelee,  9  Verm.  352;  Johnson 


NOTICE     TO    QUIT.  309 

sue  in  trespass  for  the  recovery  of  damages,  or  in  eject- 
ment for  that  of  the  premises  themselves;  or,  if  the 
tenancy  be  such  as  to  admit  of  it,  he  may  resort  to  the 
provisions  of  stat.  1  &  2  Vic.  c.  -  74,  by  which  two 
justices  may  by  their  warrant,  issued  in  the  manner 
pointed  out  by  that  statute,  restore  to  the  landlord  pos- 
session of  premises  held  [at  will  or]  for  a  term  not 
exceeding  seven  years,  [either  without  rent,  or]  at  a 
rent  not  exceeding  £20  a-year,  and  in  which  the 
tenancy  is  legally  determined.^^ 

2^  See  as  to  the  mode  of  pleading  in  trespass  a  justification  under 
this  act,  Jones  v.  Chapman,  1-i  M.  &  W.  124.*  Where  the  landlord 
takes  proceedings  under  this  statute,  but  has  no  right  to  the  posses- 
sion, he  is  liable  in  trespass.  Darlington  v.  Pritchard,  4  M.  &  Gr. 
783,  (43  E.  C.  L.  R.  404,).  The  provisions  of  this  act  have  been 
in  a  great  degree  superseded  by  those  of  the  County  Court  Act, 
9  &  10  Vic.  c.  95,  which  has  provided  a  v?ider  remedy  of  the  same 
kind.  It  is  enacted  by  s.  122  of  this  act,  that  when  the  term  and  in- 
terest of  the  tenant  of  any  house,  land,  or  other  corporeal  heredita- 
ment, where  the  value  of  the  premises,  or  the  rent  payable,  does  not 
exceed  50?.  by  the  year,  and  on  which  no  rent  has  been  paid,  has 
ended,  or  been  duly  determined  by  a  legal  notice  to  quit,  and  tho  ten- 
nant  or  (if  he  does  not  occupy,  or  only  occupies  a  part)  any  person  by 
whom  the  premises  or  any  part  of  them,  are  then  actually  occupied, 
neglects  or  refuses  to  give  up  possession,  the  landlord  or  his  agent 
may  enter  a  plaint  in  the  County  Court,  and  obtain  a  summons  to  the 
person  who  retains  the  possession.  These  proceedings  must  be  taken 
in  the  County  Court  for  the  district  in  which  the  premises  are  situ- 
ated.    See  Eule  199  of  the  Rules  of  Practice  of  the  County  Courts. 

V.  Hannahan,  1  Strobhart,  313.  It  is  also  held  in  Pennsylvania, 
under  the  statutes  iu  force  in  that  State,  that  the  iudictuieut 
for  forcible  entry  and  detainer,  to  authorize  an  award  of  restitution, 
must  set  out  the  estate  of  the  ejected  party.  Van  Pool  v.  The 
Commonwealth,  1  Harris,  391 ;  Commonwealth  v.  Toram,  2  Parsons, 
411.  Burd  V.  Commonwealth,  (3  S.  &  R.  252.  Torrencc  v.  The 
Commonwealth,  9  Jiarr,  184. 


310  LANDLORD    AND    TENANT. 

^,  *There  is  another  act  [the   11  Geo.  2,  c. 

^  ^^^^  19,  s.  16,  extended  by]  the  57  Geo.  3,  c.  52, 
which  was  passed  to  provide  for  the  case  of  a  tenant 
deserting  the  premises,  and  leaving  them  to  go  to  ruin, 
and  the  landlord  without  remedy  for  rent ;(«)  and  it 
provides  that  in  such  case,  two  justices,  taking  a  coiu'se 
therein  specifically  pointed  out,  may,  in  a  summary 
way,  deliver  the  possession  back  to  the  landlord. (&)     See 

If  the  tenant  neglects  to  appear,  or  if  upon  the  hearing  of  the  case 
the  County  Court  judge  decides  that  the  landlord  is  entitled  to  recover 
the  possession,  a  possession  warrant  issues  under  the  seal  of  the  Court 
to  a  bailiff,  requiring  and  authorising  him  to  give  possession  of  the 
premises  to  the  landlord  or  to  his  agent,  within  a  time  not  less  than 
seven  or  more  than  ten  clear  days  from  the  date  of  the  warrant.  See 
Pollock  on  the  County  Courts,  Part  I.,  Chap.  XIII.  In  the  Earl  of 
Harrington  v.  Ramsay,  8  Exch.  879,  the  Court  of  Exchequer  held, 
that  this  statute  gives  jurisdiction  to  the  County  Court  where  either 
the  rent  or  the  annual  value  does  not  exceed  50/.  The  Court  of 
Queen's  Bench  has  also  put  the  same  construction  upon  the  act.  See 
In  re  Earl  of  Harrington,  2  E.  &  B.  669,  (75  E.  C.  L.  R.  669,). 
But  in  this  case  Mr.  Justice  Crompton  dissented  from  the  decision, 
being  of  opinion  that  the  County  Court  has  jurisdiction  only,  where 
neither  the  rent  nor  the  value  exceed  this  sum  ;  an  interpretation  of 
the  act  which  appears  to  be  consistent  with  the  view  taken  of  it  by 
the  Court  of  Exchequer  in  an  earlier  case.  See  Crowley  v.  Vitty,  7 
Exch.  319. 

(a)  See  Jackson  v.  Hawkcs,  2  Caines,  335,  McKinney  v.  Reader, 
7  Watts  123,  from  which  it  appears  that  in  such  case  the  landlord 
has  a  right  to  resume  his  possession  without  process.  But  see  Salton- 
stall  V.  White,  1  Johns  Cases,  221 ;  Wood  v.  Wood,  9  Johns.  257. 
See  also  as  to  vacant  possession,  Doe  d.  Darlington  v.  Cock,  4  B.  & 
C.  259  (10  E.  C.  L.  568) ;  ex  parte  Pillow.  1  B.  &  A.  369 ;  Hillary 
V.  Gay,  6  Car.  &  Pay.  284,  (25  E.  C.  L.  R.  435,). 

(Z>)  Similar  enactments  have  been  made  by  the  legislatures  of 
most  of  the  States. 

In  Pennsylvania,  by  second  section  of  the  Act  25th  March,  1825, 
which  is  confined  to  the   City  and  County  of  Philadelphia,  (8   Sm. 


NOTICE    TO    QUIT.  311 

on  this  act,  AsJicroft  v.  Bourne,  3  B.  &  Ad.  684,  (23  E. 
C.  L.  K  301,) ;  Basten  v.  Carew,  3  B.  &  C.  649,  (10  E. 
C.  L.  R.  295,). 


29 


2^  Under  this  act  the  proceedings  of  the  justices  are  examinable  in 
a  summary  way  by  the  judges  of  assize.  See  as  to  this  provision, 
Keg.  V.  Traill,  12  A.  &  E.  761,  (40  E.  C.  L.  R.  377,);  and  Reg.  v. 
Sewell,  8  Q.  B.  161,  (55  E.  C.  L.  R.  161,). 

Laws,  411,)  it  is  enacted,  "If  any  lessee  for  a  term  of  years,  in  the 
City  and  County  of  Philadelphia,  shall  remove  from  such  demised 
premises  without  leaving  sufficient  property  thereon  to  secure  the 
payment  of  at  least  three  months'  rent,  or  shall  refuse  to  give 
security  for  the  payment  thereof  in  five  days  after  demand  of  the 
same,  and  shall  refuse  to  deliver  up  possession  of  such  premises,  it 
shall  and  may  be  lawful  for  the  landlord  or  lessor  to  apply  to  any 
two  aldermen  or  justices  of  the  peace  within  the  City  or  County  of 
Philadelphia,  and  make  an  affidavit  or  affirmation  of  the  fact,  and 
thereupon  the  said  aldermen  or  justices  of  the  peace  shall  forthwith 
issue  their  precepts  to  any  constable  of  the  proper  City  or  County, 
commanding  him  to  summon  such  lessee  before  such  aldermen  or 
justices  on  a  day  certain,  not  exceeding  eight  nor  less  than  five  days, 
to  answer  such  complaint;  and  the  said  aldermen  or  justices  shall, 
on  the  day  appointed,  proceed  to  hear  the  case ;  and  if  it  shall 
appear  that  the  lessee  has  removed  from  the  premises  without  leaving 
sufficient  goods  and  chattels,  or  giving  security  for  the  payment  of 
the  rent  as  aforesaid,  and  has  refused  to  deliver  up  possession  of  the 
demised  premises,  they  ^shall  enter  judgment  against  such  lessee, 
that  said  premises  shall  be  delivered  up  to  the  lessor  or  landlord 
forthwith,  and  shall,  at  the  request  of  the  said  lessor  or  landlord, 
issue  a  writ  of  possession,  directed  to  said  constable,  commanding  him 
forthwith  to  deliver  possession  of  the  premises  to  the  landlord  or  les- 
sor;  and  also  to  levy  the  costs  on  the  defendant  in  the  same  manner 
that  executions  issued  by  justices  of  the  peace  are  directed  by  law." 
Under  this  statute  it  has  been  ruled  that  the  record  must  show 
that  the  tenant  was  a  lessee  for  term  of  years.  Geisenberger  v. 
Corf,  7  Leg.  Int.  7,  and  that  there  must  be  an  actual  removal  to 
justify  proceedings  under  this  act.  "  A  lessee  or  tenant  who  removes, 
and  does  not  leave  property  sufficient  to  pay  the  rent,  or  give  security 


312  LANDLORD    AND    TENANT. 

Besides  these  remedies,  there  are  two  statutes  which, 
in  case  of  a  tenant  holding  over  after  the  expiration  of 
his  interest,  enable  the  landlord  to  subject  him  to  con- 
siderable pecuniary  loss.     One  of  these  is  stat.  4  Geo. 
^  2,  c.  28,  s.  1,  which,   in  *case  of  his  holding 

•-  '  ^  over  after  demand  and  notice  by  the  landlord, 
subjects  him  to  pay  for  the  future  double  the  yearly 
value  of  the  premises  to  be  recovered  by  action  of 
debt.'°(a)     The  other  is  the   stat.  11  Geo.  2,  c.  19,  s. 

^°  The  statute  requires  that  there  should  be  a  "  demand  made  and 
notice  i?t  writing  given  for  delivering  the  possession"  of  the  premises. 
A  notice  to  quit,  when  regular,  will  operate  also  as  a  demand  of  the 
possession  under  the  act  without  any  more  specific  demand;  and 
notices  to  deliver  up  the  possession  under  the  statute  are  not  construed 
strictly.  See  Doe  d.  Matthews  v.  Jackson,  1  Dougl.  175  ',  Poole  v, 
Warren,  8  A.  &  E.  582,  (35  E.  C.  L.  R.  463,) ;  Doe  d.  Lyster  v. 
Goldwin,  2  Q.  B.  143,  (42  E.  C.  L.  R.  610,) ;  and  Page  v.  More,  15 
Q.  B.  684,  (69  E.  C.  L.  R.  684,).  But,  where  a  notice  required  the 
tenant  to  give  up  the  possession  at  twelve  at  noon  on  the  day  on 
which  the  tenancy  was  determinable,  at  which  time  the  landlord 
would  attend  to  receive  the  keys  and  the  rent,  and  stated  that  in  the 
event  of  his  not  so  surrendering,  the  landlord  would  demand  a  certain 
daily  rent  mentioned  in  the  notice,  which  exceeded  in  fact  double  the 
amount  of  the  original  rent,  it  was  held  that  this  notice  was  insuffi- 

for  the  payment  thereof,  if  required,  is  within  the  provisions  of  the 
act;  but  a  lessee  or  tenant  who  continues  in  possession,  who  neither 
removes  himself  nor  his  goods  is  not  within  the  same."  Freytag  v. 
Anderson,  1  Rawle,  75 ;  Black  v.  Alberson,  1  Ash.  127.  A  tender 
of  security  after  the  expiration  of  the  five  days  is  too  late.  Ward 
V.  Wandell,  10  Barr,  98. 

For  what  constitutes  a  removal,  and  the  proceedings  under  the 
New  York  statute,  see  Stratton  v.  Lord,  22  Wend.  611 ;  Jackson  v. 
Hakes,  2  Gaines,  335. 

(a)  These  statutes  were  followed  in  the  revised  statutes  of  New 
York,  but  have  not  been  adopted  in  other  States. 

Pennsylvania  in  1792,  and   Maryland   in  1793,  passed   laws  to 


NOTICE    TO    QUIT.  313 

18,   which,  if  the  *tenant  do  not  quit  after     ^^.^ 
determining  his  interest  hy  his  own  notice^  sub-   "-         ^ 

cient,  the  tenant  being  required  to  give  up  the  possession  before  the 
expiration  of  the  tenancy.  See  the  case  last  cited.  The  act  only 
speaks  of  tenants  "  for  life  or  lives  or  years ;"  it  has  therefore  been 
held  not  to  apply  to  a  weekly  tenancy.  Lloyd  v.  Rosbee,  2  Camp. 
453;  Sullivan  v.  Bishop,  2  C.  &  P.  359,  (12  E.  C.  L.  R.  616,).  See 
also  Bac.  Ab.  Leases  (L.  3).  It  does  not  apply  where  the  tenant 
retains  the  possession  under  a  fair  claim  of  right.     Wright  v.  Smith, 

5  Esp.  203.  Where  the  owner  of  a  woollen-mill  and  steam-engine 
let  a  room,  with  a  supply  of  power  from  the  engine  by  means  of  a 
revolving  shaft  in  the  room,  it  was  held  that  in  estimating  the  double 
value  of  the  premises,  the  value  of  the  power  supplied  could  not  be 
included ;  for  the  act  speaks  only  of  the  value  of  the  lands,  tenements 
and  hereditaments,  which  are  detained.     Robinson  v.  Learoyd,  7  M. 

6  W.  48.*  The  action  may  be  brought  in  the  County  Court ;  and 
the  tenant  cannot  deprive  the  Court  of  jurisdiction  by  setting  up  a 
title  to  the  premises  in  himself,  if  he  has  admitted  the  existence  of 
the  tenancy  up  to  the  time  at  which  the  holding  over  commenced. 
Wickham  v.  Lee,  12  Q.  B.  521,  (64  E.  C  L.  R.  521,).  But  he 
may,  in  accordance  with  the  general  rule,  show  that  his  landlord's 
title  has  expired,  and  so  oust  the  jurisdiction  of  the  County  Court. 
Mountnoy  v.  Collier,  1  E.  &  B.  630,  (72  E.  C  L.  R.  630,). 

enable  landlords  to  obtain  possession  summarily  against  tenants 
holding  over. 

The  Pennsylvania  act,  which  is  to  be  found  in  1  Smith,  373,  is  in 
these  words : 

"  Section  12.  Where  any  person  or  persons  in  this  province,  hav- 
ing leased  or  demised  any  lands  or  tenements  to  any  person  or  persons 
for  a  term  of  one  or  more  years,  or  at  will,  paying  certain  rents,  and 
he  or  they,  or  his  or  their  heirs  or  assigns,  shall  be  desirous  upon 
the  determination  of  the  lease,  to  have  again  and  repossess  his  or 
their  estate  so  demised,  and  for  that  purpose  shall  demand  and  require 
his  or  their  lessee  or  tenant  to  remove  ft-om  and  leave  the  same;  if 
the  lessee  or  tenant  shall  refuse  to  comply  therewith  in  three  months 
after  such  request  to  him  made,  it  shall  and  may  be  lawful  to  and  for 
such  lessor  or  lessors,  his  or  their  heirs  and  assigns,  to  complain 


314  LANDLORD    AND    TENANT. 

tboroof  to  any  two  justices  of  the  city,  town,  or  county  where  the 
demised  premises  are  situate,  and  upon  due  proof  made  before  the 
said  justices,  that  the  said  lessor  or  lessors  had  been  quietly  and 
peaceably  possessed  of  the  lands  or  tenements  so  demanded  to  be 
delivered  up,  that  he  or  they  demised  the  same,  under  certain  rents, 
to  the  then  tenant  in  possession,  or  some  person  or  persons  under 
whom  such  tenant  claims,  or  came  into  possession,  and  that  the  term 
for  which  the  same  was  demised,  is  fully  ended,  then  and  in  such 
case,  it  shall  and  may  be  lawful  for  the  said  two  justices,  to  whom 
complaint  shall  be  made  as  aforesaid,  and  they  are  hereby  enjoined 
and  required  forthwith  to  issue  their  warrant  in  nature  of  a  summons, 
directed  to  the  sheriff  of  the  county,  thereby  commanding  the  sheriff 
to  summon  twelve  substantial  freeholders  to  appear  before  the  said 
justices  within  four  days  next  after  issuing  the  said  summons  ;  and 
also  to  summon  the  lessee  or  tenant,  or  other  person  claiming  or 
coming  into  possession  under  the  said  lessee  or  tenant  at  the  same 
time  to  appear  before  them,  the  said  justices  and  freeholders,  to  show 
cause,  if  any  he  has,  why  restitution  of  the  possession  of  the  demised 
premises  should  not  be  forthwith  made  to  such  lessor  or  lessors,  his  or 
their  heirs  or  assigns ;  and  if,  upon  hearing  the  parties,  or  in  case  of 
the  tenant's  or  other  person's  claiming  or  coming  into  possession  under 
the  said  lessee  or  tenant,  neglect  to  appear  after  being  summoned  as 
aforesaid,  it  shall  appear  to  the  said  justices  and  freeholders  that  the 
lessor  or  lessors  had  been  possessed  of  the  lands  or  tenements  in 
question ;  that  he  or  they  had  demised  the  same  for  a  term  of  years, 
or  at  will,  to  the  person  in  possession,  or  some  other  under  whom  he 
or  she  claims,  or  came  into  possession,  at  a  certain  yearly  or  other 
rent,  and  that  the  term  is  fully  ended,  that  demand  had  been  made 
of  the  lessee  or  other  person  in  possession,  as  aforesaid,  to  leave  the 
premises  three  months  before  such  application  to  the  said  justices, 
then,  and  in  every  such  case,  it  shall  and  may  be  lawful  for  the  said 
two  justices  to  make  a  record  of  such  finding  by  them,  the  said  jus- 
tices and  freeholders,  and  the  said  freeholders  shall  assess  such 
damages  as  they  think  right  against  the  tenant  or  other  person  in 
possession  as  aforesaid,  for  the  unjust  detention  of  the  demised  pre- 
mises, for  which  damages  and  reasonable  costs,  judgment  shall  be 
entered  by  the  said  justices,  which  judgment  shall  be  final  and  con- 
clusive to  the  parties ;  and  upon  which  the  said  justices  shall,  and 
they  are  hereby  enjoined  and  required  to  issue  their  warrant,  under 


NOTICE    TO    QUIT.  315 

their  hands  and  seals,  directed  to  the  sheriff  of  the  county,  command- 
ing him  forthwith  to  deliver  to  the  lessor  or  lessors,  his  or  their 
heirs  or  assigns,  full  possession  of  the  demised  premises  aforesaid, 
and  to  levy  the  costs  taxed  by  the  justices,  and  damages  so  by  the 
freeholders  aforesaid  assessed,  of  the  goods  and  chattels  of  the  lessee 
or  tenant,  or  other  person  in  possession,  as  aforesaid,  any  law,  cus- 
tom, or  usage  to  the  contrary  notwithstanding. 

Section  13.  Provided  always,  That  if  the  tenant  shall  allege  that 
the  title  to  the  lands  and  tenements  in  question,  is  disputed  and 
claimed  by  some  other  person  or  persons,  whom  he  shall  name,  in 
virtue  of  a  right  or  title  accrued  or  happening  since  the  commence- 
ment of  the  lease  so,  as  aforesaid,  made  to  him,  by  descent,  deed,  or 
from  or  under  the  last  will  of  the  lessor,  and  if  thereupon  the  person 
so  claiming  shall  forthwith,  or  upon  a  summons  immediately  to  be 
issued  by  the  said  justices,  returnable  in  six  days  next  following, 
before  them  appear,  and  on  oath  or  affirmation,  to  be  by  the  said 
justices  administered,  declare  that  he  verily  believes  that  he  is 
entitled  to  the  premises  in  dispute,  and  shall,  with  one  or  more  suffi- 
cient sureties,  become  bound,  by  recognizance,  in  the  sum  of  one 
hundred  pounds,  to  the  lessor  or  lessors,  his  or  their  heirs  or  assigns, 
to  prosecute  his  claim  at  the  next  Court  of  Common  Pleas  to  be  held 
for  the  county  where  the  said  lands  and  tenements  shall  be,  then, 
and  in  such  case,  and  not  otherwise,  the  said  justices  shall  forbear  to 
give  the  said  judgment.  Provided  also,  That  if  the  said  claim  shall 
not  be  prosecuted  according  to  the  true  intent  and  meaning  of  the 
said  recognizance,  it  shall  be  forfeited  to  the  use  of  the  lessor  or 
landlord,  and  the  justices  aforesaid  shall  proceed  to  give  judgment, 
and  cause  the  lands  and  tenements  aforesaid  to  be  delivered  to  him 
in  the  manner  hereinbefore  enjoined  and  directed. 

Act  of  22d  March,  1814,  §1,  6  Smith,  176.  The  provisions  of  the 
12th  section  of  the  act  entitled,  "An  act  for  the  sale  of  goods  dis- 
trained for  rent,  and  to  secure  such  goods  to  the  persons  distraining 
the  same,  for  the  better  security  of  rents,  and  for  other  purposes  there- 
in mentioned,"  shall  not  be  so  construed  or  extended,  as  to  enable  any 
landlord  or  lessor,  his  heirs  or  assigns,  by  the  summary  mode  of  pro- 
ceeding therein  prescribed,  to  dispossess  any  person  claiming  to  hold 
such  leased  or  demised  premises,  as  joint-tenant,  copartner,  or  tenant 
in  common,  with  the  landlord  or  person  claiming  possession.  Pro- 
vided, That  the  tenant  or  the  person  in  possession,  or  the  person  under 


316  LANDLORD    AND    TENANT. 

whom  the  tenant  may  claim  to  hold,  shall,  upon  the  return  of  the 
warrant,  in  the  nature  of  a  summons  issued  by  the  two  justices  of  the 
peace  to  whom  the  landlord,  lessor,  or  person  claiming  possession  may 
have  applied,  declare,  on  oath  or  affirmation  to  be  taken  and  subscribed 
before  the  said  justices,  that  the  premises  in  dispute  are  holden  and 
claimed  by  or  under  a  co-joint-tenant,  copartner,  or  tenant  in  common 
with  the  landlord,  lessor,  or  person  claiming  possession,  and  that  the 
person  making  such  oath  or  affirmation  doth  verily  believe,  that  the 
premises  in  dispute  do  not  exceed  in  quantity  or  value  the  just  pro- 
portion of  the  joint-tenant,  partner,  or  tenant  in  common,  by  or  under 
whom  the  premises  may  be  holden  or  attempted  to  be  holden.  Aiid 
provided  also,  That  the  tenant  or  person  in  possession,  or  the  person 
under  whom  the  tenant  may  claim  to  hold,  shall,  with  one  or  more 
sufficient  sureties,  become  bound  by  recognizance  in  the  sum  of  one 
thousand  dollars,  to  the  lessor  or  landlord,  or  person  claiming  posses- 
sion, his  heirs  or  assigns,  to  prosecute  his  claim  at  the  next  Court  of 
Common  Pleas  to  be  held  for  the  county  where  the  lands  shall  be. 
But  if  the  said  claims  shall  not  be  so  prosecuted,  then  and  in  that 
case  such  proceedings  shall  be  had  as  would  have  been  had  if  the  said 
recognizance  had  not  been  entered  into." 

This  act  has  been  determined  to  apply  to  leases  for  less  than  a  year. 
ShafTer  v.  Sutton,  5  Binney,  228.  There  must  be  a  certain  rent  re- 
served Blashford  v.  Duncan,  2  S.  &  R.  480 ;  Scott  v.  Fuller,  3 
Penn'a,  55;  Hohly  v.  German  Refd  So'y,  2  Barr,  293. 

Where  the  notice  is  from  year  to  year,  the  notice  to  quit  must  be 
given  three  months  before  the  expiration  of  the  current  year.  Lesley 
V.  Randolph,  4  R.  123 ;  Boggs  v.  Black,  1  Bin.  333;  Logan  v.  Her- 
ron,  8  S.  &  R.  461.  But  when  the  lease  is  for  a  term  certain,  a  notice 
before  the  expiration  of  the  term  is  unnecessary.  If  the  tenant  does 
not  then  remove,  the  landlord  may,  after  the  expiration  of  the  term, 
give  notice  and  proceed  under  this  act.  Logan  v.  Herron,  8  S.  &  R. 
459  ;  Lesley  v.  Randolph,  4  R.  126 ;  Bedford  v.  McElherron,  2  S.  & 
R.  49;  Evans  v.  Hastings,  9  Barr,  273.  The  tenant  may  waive  the 
notice — but  the  fact  of  waiver  must  be  expressly  found  by  the  inqui- 
sition.     Hutchinson  v.  Potter,  1  Jones,  472. 

The  tenancy  must  be  at  an  end  before  proceedings  can  be  taken. 
Logan  V.  Herron,  8  S.  &  R.  470;  Clark  v.  Everley,  8  W.  &  S.  231 ; 
and  the  record  must  show  that  the  term  is  ended.  Fahnestock  v. 
Faustenauer,  5  S.  &  R.  174.     The  affidavit  of  the  landlord  is  suffi- 


NOTICE    TO    QUIT.  317 

jects  him  thenceforward  to  double  the  yearly  rent  to  be 
recovered  in  the  same  way  as  the  single  rent  might 
have  been  during  the  continuance  of  the  tenancy.^^  (a) 

2'  A  parol  notice  to  quit  is  within  the  statute ;  for  the  act  does  not 
require  that  it  should  be  in  writing ;  and  a  notice  to  quit  may  be 
given  by  parol.  Timmins  v.  Rowlison,  3  Burr.  1603.  The  act  ex- 
tends to  a  parol  demise  from  year  to  year,  ib. ;  but  it  does  not  apply 

cient  to  found  the  proceedings.  Cunningham  v.  Gardner,  4  W.  &  S. 
120.  The  summons  may  be  made  returnable  before  the  fourth  day. 
Hower  v.  Krider,  15  S.  &  R.  43.  See  Stroup  v.  M'Clure,  4  Yeates, 
523  ;  Blashford  v.  Duncan,  2  S.  &  R.  481.  All  the  facts  necessary 
to  give  jurisdiction  must  appear  on  the  record.  2  S.  &  E..  480 ; 
McGree  v.  Fessler,  1  Barr,  126. 

The  sheriflF  alone  can  select  the  jurors.  Ayres  v.  Nooinger,  8  Barr, 
414. 

If  the  jury  cannot  agree,  they  may  be  discharged,  and  another  sum- 
moned. Cunningham  v.  Gardner,  4  W.  &  S.  120.  The  tenant  is 
concluded  by  the  finding.  The  landlord  may  renew  his  complaint 
before  other  justices.     Ayres  v.  Novinger,  8  Barr,  414. 

A  writ  of  error  lies  to  the  Common  Pleas,  and  a  certiorari  may 
issue.  Boggs  v.  Black,  1  Binn.  333 ;  Clark  v.  Yeat,  4  Binn.  185 ; 
Clark  V.  Patterson,  6  Binn.  128 ;  Grubb  v.  Fox,  ib.  460 ;  Lennox  v. 
McCall,  3  S.  &  R.  95 ;  but  is  no  supersedeas.  Grubb  v.  Fox,  6  B. 
460 ;  Un.  Canal  Co.  v.  Keyser,  7  Harris,  137.  And  the  finding  may 
be  traversed  on  an  ejectment  brought  by  the  tenant  to  try  the  title. 
Galbraith  v.  Black,  4  S.  &  R.  207.  On  reversal,  restitution  is  not  of 
course,  but  may  be  refused.     McGee  v.  Fessler,  1  Barr,  126. 

Under  the  proviso  in  the  13  th  section  of  the  act,  it  is  said  the 
tenant  himself  may  make  the  claim.  Steele  v.  Thompson,  3  Penn. 
37;  Cunningham  v.  Gardner,  4  W.  &  S.  126 ,  and  he  may  show  that 
his  landlord's  title  has  expired,  though  he  cannot  dispute  it.  1  W. 
&  S.  498. 

See  as  to  the  extent  of  the  justice's  jurisdiction.  Steel  v.  Thompson, 
3  Penn.  34 ;  Newell  v.  Gibbs  1  W.  &  S.  499 ;  Clark  v.  Everley, 
8  W.  &  S.  226. 

(a)  In  addition  to  the  Act  given  in  the  preceding  note,  the  Legis- 
lature of  Pennsylvania,  on   the  third  of  April,   1830,  passed   the 


318  LANDLORD    AND    TENANT. 

unless  the  tenant  lias  given  a  notice  binding  upon  him  to  quit  at  the 
expiration  of  the  time  specified  in  it,  and  upon  which  the  landlord 
might  have  acted.  Johnstone  v.  Hudlcstone,  4  B.  &  C.  922,  (10  E. 
C.  L.  R.  860,). 

following  Act  to  enable  landlords  to  recover  possession  when  the 
tenants  neglect  or  refuse  to  pay  the  rent,  as  often  as  the  same 
becomes  due,  and  there  are  not  adequate  goods  on  the  premises  to 
secure  the  rent. 

Act  of  3d  April,  1830,  §  1.    Pam.  Laws,  187. 

In  case  any  lessee  for  a  term  of  years,  or  at  will,  or  otherwise,  of  a 
messuage,  lands,  or  tenements,  upon  the  demise  whereof  any  rents 
are  or  shall  be  reserved,  where  the  lessee  shall  neglect  or  refuse  to 
pay  rent  reserved  as  often  as  the  same  may  grow  due,  according  to 
the  terms  of  the  contract,  and  where  there  are  no  goods  on  the 
premises  adequate  to  pay  the  said  rent  so  in  arrear,  except  such 
articles  as  are  exempt  from  levy  and  sale  by  the  laws  of  the  common- 
wealth, it  shall  and  may  be  lawful  for  the  lessor  to  give  the  lessee 
notice  to  quit  the  premises  within  fifteen  days  from  the  date  of  the 
notice,  if  such  notice  is  given  on  or  after  the  first  day  of  April,  and 
before  the  first  of  September,  and  within  thirty  days  from  the  date 
thereof,  if  given  on  or  after  the  first  of  September,  and  before  the 
first  day  of  April;  and  if  the  lessee  shall  not,  within  the  period 
aforesaid,  remove  from  and  deliver  up  the  said  premises  to  the  said 
lessor,  or  pay  and  satisfy  the  rent  so  due  and  in  arrear,  it  shall  be 
lawful  for  the  lessor  to  make  complaint  on  oath  or  aflSrmation,  to 
any  two  aldermen  or  justices  of  the  peace,  as  the  case  may  require, 
who,  on  its  appearing  to  them  that  the  lessor  has  demised  the  pre- 
mises for  a  term  of  years,  or  otherwise,  whereof  any  rent  or  rents  have 
been  reserved,  that  the  said  rent  is  in  arrear  and  unpaid,  that  there 
is  not  sufficient  goods  and  chattels  on  the  premises  to  pay  and  satisfy 
the  said  rent,  except  such  as  are  by  law  exempted  from  levy  and 
sale,  and  that  the  lessee  has,  after  being  notified  in  manner  aforesaid, 
refused  to  remove  and  redeliver  up  possession  of  the  premises,  shall 
then  and  in  that  case  issue  their  precept,  reciting  substantially  the 
complaint  and  allegation  of  the  lessor,  directed  to  any  constable  of 
the  proper  city  or  county,  commanding  him  to  summon  the  said 
lessee  to  appear  before  the  said  aldermen  or  justices  at  a  day  and 
time  to  be  therein  fixed,  not  less  than  three,  nor  more  than  eight 


NOTICE    TO    QUIT.  319 

days  tbereafter,  to  answer  the  said  complaint ;  and  the  said  aldermen 
or  justices  shall,  on  the  day  appointed,  or  on  some  other  day  then  to 
be  appointed  by  said  justices  or  aldermen,  proceed  to  hear  the  case, 
and  if  it  shall  appear  that  the  said  complaint  so  made  as  aforesaid  by 
the  lessor,  is  in  all  particulars  just  and  true,  then  the  said  aldermen 
or  justices  shall  enter  judgment  against  such  lessee,  that  the  premises 
shall  be  delivered  up  to  the  lessor,  and  at  the  request  of  the  lessor 
issue  a  writ  of  possession,  directed  to  the  said  constable,  commanding 
him  forthwith  to  deliver  actual  possession  of  the  premises  to  the 
lessor,  and  also  to  levy  the  costs  on  the  defendant,  in  the  same 
manner  that  costs  are  now  by  law  levied  and  collected  on  other  writs 
of  execution  ;  but  if  on  the  hearing  aforesaid  it  shall  appear  that  the 
said  complaint  is  vexatious  and  unfounded,  the  said  aldermen  or 
justices  shall  dismiss  the  same  with  costs  to  be  paid  by  the  lessor. 
Provided  always,  That  at  any  time  before  the  said  writ  of  possession 
is  actually  executed,  the  lessee  may  supersede  and  render  the  said 
writ  of  none  effect,  by  paying  to  the  said  constable,  for  the  use  of  the 
lessor,  the  rent  actually  due  and  in  arrear,  and  the  costs ;  which  rent 
so  in  arrear  shall  be  ascertained  and  determined  by  the  said  aldermen 
or  justices  on  due  and  legal  proof,  and  indorsed  by  them  on  the  said 
writ  of  possession,  together  with  the  costs  of  the  proceeding,  of  all  of 
which  doings  the  said  constable  shall  make  return  to  the  said  alder- 
men or  justices  within  ten  days  after  receiving  of  the  said  writ,  and 
the  said  constable  shall  be  answerable  in  default  of  executing  the 
said  writ  according  to  its  lawful  requisitions,  or  in  returning  the 
same  in  the  same  manner  as  to  the  amount  of  rent  ascertained  and 
determined,  and  costs,  as  constables  are  now  by  law  answerable  on 
other  writs  of  execution.  And  provided  further,  That  no  writ  of 
possession  shall  be  issued  by  the  said  aldermen  or  justices  for  five 
days  after  the  rendition  of  judgment,  and  if  within  the  said  five  days, 
the  tenant  shall  give  good,  sufficient  and  absolute  security  by  recogniz- 
ance for  all  costs  that  may  have,  and  may  accrue,  in  case  the  judgment 
shall  be  affirmed ;  and  also  for  all  rent  that  has  accrued,  or  may 
accrue  up  to  the  time  of  final  judgment;  then  the  tenant  shall  be 
entitled  to  an  appeal  to  the  next  Court  of  Common  Pleas,  which 
appeal  shall  be  then  tried  in  the  same  manner  that  other  suits  are 
tried.  And  provided  farther,  That  nothing  herein  contained  shall 
prevent  the  issuing  of  a  certiorari  with  the  usual  form  and  effect. 
Under  this  statute  it  has  been  held  that  the  sheriff's  vendee  of  the 


320  LANDLORD    AND    TENANT. 

landlord's  title  is  a  lessor  within  its  meaning.  McKeon  v.  King,  9 
Barr,  213;  Clark  v.  Everley,  8  W.  &  S.  227.  And  that  the  notice 
to  quit  must  be  accompanied  with  a  demand  for  the  rent.  Clark  v. 
Everley,  8  W.  &  S.  223.  And  that  the  notice  must  be  served  on 
the  party  residing  on  the  premises.  Clark  v.  Everley,  8  W.  &  S. 
228.  It  must  be  proved  affirmatively  on  the  hearing  that  there  is  a 
deficiency  of  goods  on  the  premises.  Clark  v.  Everley,  8  W.  &  S. 
228.  As  to  what  is  sufficient  in  the  finding  of  the  justices.  See 
McKeon  v.  King,  9  Barr,  213. 

The  justices  are  not  to  enter  judgment  for  the  rent  arrear.  Hazen 
V.  Culbertson,  10  W.  395. 

As  to  the  recognisance,  see  Hazen  v.  Culbertson,  10  Watts,  393, 


EMBLEMENTS. 


321 


*LECTUItE    IX. 


[*247] 


Rights  of  parties  on  Determi- 
nation OF  Tenancy  (contin- 
ued)    247 

Emblements 247 

Where  there  is  no  Contract  248 
When  they  may  be  claimed  249 
Not  when  Tenancy  is  deter- 
mined by  act  of  Tenant. .  251 
Out   of  what  they  may  be 

claimed 253 

Entry  to  take  them 256 

Where  there  is  a  Contract 

express  or  implied 256 

Custom  of  the  Country 256 

Way-going  Crops 256 


Fixtures 262 

Where  no  express  agreement  262 
Annexations  to  Freehold...  262 
Relaxation  of  Rule  as  to. . . .   264 

Tenant's  Fixtures 264 

Rules  for  determining  what 

are 266 

Trade  Fixtures 267 

Wider  rule  with  respect  to. .  267 

Agricultural  Fixtures 270 

When     Removal     must    be 

made 272 

Where  express  Agreement  274 
Valuation 275 


In  the  last  Lecture  we  considered  the  different 
modes  in  which  a  tenancy  may  be  determined,  whether 
by  efflux  of  time^  surrender,  express  or  implied,  and  for- 
feiture^ or — in  the  case  of  a  yearly  tenancy,  or  tenancy 
of  a  like  description  to  a  yearly  one — by  notice  to  quit. 
It  remains  to  consider  the  respective  rights  of  the  two 
parties  upon  the  determination  of  the  tenancy.  These 
are  often  provided  for  by  express  agreement ;  but  even 
in  the  absence  of  express  agreement,  there  are  two 
matters  for  which  the  law  provides,  between  land- 
lord and  tenant,  under  the  head  of  Emblements  and 
*  Fixtures.  The  term  emblements  expresses  a  ^rno 
right  which  the  law  gives  to  the  tenant  of  an  '-  ^  -^ 
estate  of  uncertain  duration,  and  which  has  unex- 
pectedly determined,  without  any  fault  of  his,  to  take 
the  crops  growing  upon   the   land   when   his   estate 

determines,  although  his  estate  is  itself  come  to  an  end. 

21 


322  LANDLORD    AND    TENANT. 

It  is  obvious  that  this  right  proceeds  upon  a  just  and 
fair  principle,  for  a  tenant  who  has  been  at  the  labor 
and  expense  of  sowing  and  tilling  the  ground,  ought, 
in  justice  and  fairness,  to  be  allowed  to  reap  the  crop 
produced  by  that  labour,  notwithstanding  the  unfore- 
seen determination  of  his  interest.^ 


^  Since  this  Lecture  was  written  the  right  to  emblements  has  been 
taken  away  by  statute,  wherever  the  lease  of  any  farm  or  land,  held 
at  rack-rent,  determines  by  the  death  or  cesser  of  the  estate  of  a  land- 
lord who  is  entitled  for  life,  or  for  any  other  uncertain  interest.  And 
in  these  cases  an  extended  occupation  has  been  allowed  to  the  tenant 
as  an  equivalent.  See  the  14  &  15  Vic.  c.  25,  s.  1,  (which  came  into 
operation  on  the  24th  of  July,  1851,)  and  which  enacts  that  when 
*<  the  lease  or  tenancy  of  any  farm  or  lands,  held  by  a  tenant  at  rack- 
rent,  shall  determine  hy  the  death  or  cesser  of  the  estate  of  any  land- 
lord entitled  for  his  life,  or  for  any  other  nncertain  interest,  instead  of 
claims  to  emblements,  the  tenant  shall  continue  to  hold  and  occupy 
such  farm  or  lands  until  the  expiration  of  the  then  current  year  of 
bis  tenancy,  and  shall  then  quit,  upon  the  terms  of  his  lease  or  hold- 
ing, in  the  same  manner  as  if  such  lease  or  tenancy  were  then  deter- 
mined by  effluxion  of  time,  or  other  lawful  means  during  the  continuance 
of  his  landlord's  estate  ;  and  the  succeeding  landlord  or  owner  shall 
be  entitled  to  recover  and  receive  of  the  tenant,  in  the  same  manner 
as  his  predecessor  or  such  tenant's  lessor  could  have  done,  if  he  had 
been  living  or  had  continued  the  landlord  or  lessor,  a  fair  proportion 
of  the  rent  for  the  period  which  may  have  elapsed  from  the  day  of  the 
death  or  cesser  of  the  estate  of  such  predecessor  or  lessor  to  the  time 
of  the  tenant  so  quitting,  and  the  succeeding  landlord  or  owner  and 
the  tenant  respectively  shall,  as  between  themselves  and  as  against 
each  other,  be  entitled  to  all  the  benefits  and  advantages,  and  be  sub- 
ject to  the  terms,  conditions,  and  restrictions,  to  which  the  preceding 
landlord  or  lessor  and  such  tenant  respectively  would  have  been  en- 
titled and  subject,  in  case  the  lease  or  tenancy  had  determined  in 
manner  aforesaid  at  the  expiration  of  such  current  year;  provided 
always,  that  no  notice  to  quit  shall  be  necessary  or  required,  by  or 
from  either  party  to  determine  any  such  holding  and  occupation  as 
aforesaid." 


i 


EMBLEMENTS.  323 

*Now,  this  right  to  the  emblements  extends  ^^.f. 
to  a  tenant  for  life  wherever  his  estate  deter-  ^  ^  -' 
mines  by  the  act  of  God,  or  by  the  act  of  the  law ;  that 
is,  in  fact,  whenever  it  determines  by  any  means 
except  his  own  fault.  Thus,  for  instance,  if  a  tenant 
for  life  dies  before  harvest  time,  and  so  his  estate  comes 
to  an  end,  that  is  an  act  of  God,  and  his  executors  Avill 
be  entitled  to  the  crops.  But  if  a  widow  holds  lands, 
(and  there  are  instances  of  such  an  estate,)^  so  long  as 
she  shall  remain  sole  and  unmarried,  if  she  think 
proper  to  marry  again,  she  will  not  be  entitled  to 
emblements,  for  to  re-many  is  her  own  fault,  or  per- 
haps her  misfortune,  and  at  all  events,  before  she  did 
so,  she  had  time  and  opportunity  to  consider  this  point 
regarding  emblements  as  well  as  other  points  of  more 
importance  to  her.  This  state  of  the  law  is  laid  down 
in  OlancTs  Case^  5  Coke,  116,  and  in  the  judgment  of 
the  Lord  Chief  Justice  Abbott  in  BuVwer  v.  Bulivei\  2 
B.  &  A.  470.^(«) 

2  See  Co.  Litt.  214  b;  and  for  instances  of  such  an  estate,  Gland's 
Case,  cited  above ;  Doe  d.  Gwillim  v.  Glwillim,  5  B.  &  Ad.  122,  (27 
E.  C.  L.  R.  60,) ;  and  Brooke  v.  Spong,  15  M.  &  W.  153.* 

3  See  also  Co.  Litt.  55  b;  and  Com.  Dig.  B'lens  (G).  In  Gland's 
Case,  cited  in  the  text,  an  instance  is  given  of  such  a  determination 
of  an  estate  by  act  of  law  as  gives  a  right  to  emblements.  It  is  there 
said,  that  if  a  lease  be  made  to  a  husband  and  wife  during  the  cover- 
ture, and  afterwards  they  arc  divorced  causa  prsecontract-iis,  the  hus- 
band shall  have  the  emblements,  for  the  sentence  which  dissolves  the 
marriage  is  the  judgment  of  the  law.  See  the  observations  on  this 
case  in  Davis  v.  Eyton,  7  Bing.  159,  (20  E.  C.  L.  R.  79,).  Emble- 
ments may  be  claimed  by  the  executors  or  administrators  of  tenants 
for  life,  to  the  exclusion  of  the  remainder-men  or  reversioners,  because 

(a)  Debow  V.  Colfax,  5  Halst.  128 ;  3  N.  H.  504 ;  Davis  v. 
Thompson,  1  Shep.  209 ;  Sherburne  v.  Jones,  2  App.  70 ;  Davis  v. 
Brocklebunk,  9  N.  II.  73. 


324  LANDLORD    AND    TENANT. 

*Now  the  same  principles  apply  to  terms  for 
*-  "  ^  years,  and  tenancies  at  will.  Where  the  dura- 
tion of  a  term  of  years  is  certain,  where,  for  instance, 
it  is  a  term  of  seven,  or  of  fourteen,  or  of  twenty-one 
years,  the  tenant  shall  not  have  the  crops  upon  its  ter- 
mination, because  he  knew  the  extent  of  his  interest 
beforehand,  and  it  was  his  own  fault  to  leave  the  land 
covered  with  crops  at  the  time  that  interest  deter- 
mined;(«)  but  where  the  determination  of  an  estate 
for  years  depends  upon  an  uncertain  event,  the  case  is 
otherwise,  and  when  the  uncertain  event  happens,  and 
the  estate  in  consequence  comes  to  an  end,  the  tenant 
is  entitled  to  the  *crops  growing  upon  the  land 
"-         -'   when  the  estate  determines.     1st  Inst.  55  b.'* 

the  estate  is  in  these  cases  determined  by  the  act  of  God,  Co.  Litt. 
55  b  J  unless,  indeed,  the  tenant  for  life  was  not  the  person  who  actu- 
ally sowed  the  land,  in  which  case  the  reason  upon  which  the  right  is 
founded  no  longer  applies.  As,  for  instance,  where  the  land  has 
been  sowed  by  a  person  who  has  created  a  life  estate,  but  before  its 
creation.  See  Grantham  v.  Hawley,  Hob.  132  ;  and  1  Roll.  Ab. 
727,  pi.  21.  So,  upon  the  death  of  a  tenant  by  the  curtesy,  his  ex- 
ecutors or  administrators,  like  those  of  any  other  tenant  for  life,  are 
entitled  to  emblements.  1  Roper's  Husb.  and  Wife,  35  (2nd  Edit.). 
The  personal  representatives  of  the  incumbent  of  a  benefice  were,  it 
would  seem,  entitled  at  common  law  to  emblements  of  the  glebe  lands, 
but  this  right  was,  at  all  events,  clearly  established  by  the  28  Hen. 
8,  c.  11.  See  Williams  on  Executors,  GOo  (4th  Edit.).  A  clergy- 
man who  resigns  his  living,  is  not,  however,  entitled  to  emblements. 
Bulwer  v.  Bulwer,  2  B.  &  A.  470. 

4  See  also  Co.  Litt.  56  a;  Knevett  v.  Poole,  Cro.  Eliz.  463;  Vi- 
ner's  Ab.  Emhlements;  2  Black,  Com.  122;  and  the  judgment  in 
Kingsbury  v.  Collins,  4  Bing.  207,  (13  E.  C.  L.  R.  469,).  Upon 
the  same  principle,  tenants  by  statute  merchant,  and  recognisance, 
were  entitled  to  emblements.  Co.  Litt.  55  b ;  Barden's  Case,  2  Leon. 

(a)  Whitmarsh  v.  Cutting,  10  Johns.  360 ;  Bain  v.  Clark,  10 
Johns.  424 ;   Harris  v.  Carson,  7  Leigh,  632. 


EMBLEMENTS.  325 

And  in  like  manner,  with  regard  to  an  estate  at  will, 
if  the  landlord  put  an  end  to  it,  the  tenant  is  entitled 
to  the  crops,  for  he  could  not  foresee  that  the  landlord 
would  determine  it ;  but  it  is  otherwise  Avhere  the 
estate  is  determined  by  the  act  of  the  tenant  himself, 
for  he  must  be  taken  to  have  considered  the  conse- 
quences before  he  so  acted,  Littleton,  s.  68 ;  5  Coke, 
116;  and  the  judgment  in  Bidiver  v.  Buhver,  2  B.  & 
A.  470/(rt) 

These  principles  were  a  good  deal  discussed  in 
Davis  V.  Eijion,  7  Bing.  154,  (20  E.  C.  L.  R.  79,).  In 
that  case  the  tenant  held  as  lessee  from  year  to  year, 
subject  to  a  condition  of  re-entry  by  the  lessor,  which 
was  as  follows : — "  That  if  the  lessee  should  comnp.it  an 
act  of  bankruptcy,  whereon  a  commission  should 
*issue,  and  he  should  be  declared  bankrupt,  or  ^q-qt 
if  he  should  become  insolvent,  or  incur  any  debt  '- 
upon  which  any  judgment  shoidd  he  signed^  entered  up^  or 
given  against  him  and  on  lohich  any  writ  of  fieri  facias,  or 

54.  And  where  a  tenant  for  a  term  of  years  if  he  should  so  long 
live,  sows  the  land,  and  dies  before  severance,  his  executor  is  entitled 
to  the  crop.  1  Roll.  Ab.  727,  pi.  12.  It  has  been  already  observed, 
that  the  right  to  emblements  has  been  taken  away  by  the  14  &  15 
Vic.  c.  25,  where  the  lease  or  tenancy  of  any  farm  or  lands  held  by  a 
tenant  at  rack-rent  determines  by  the  death  or  cesser  of  the  estate  of 
any  landlord  who  is  entitled  for  life,  or  for  any  other  uncertain  in- 
terest.    See  ante  p.  248,  note  ^ 

Thus,  as  is  said  by  Lord  Coke,  in  Gland's  Case,  cited  above,  if  a 
lease  be  made  to  one  until  he  does  waste,  and  he  sows  the  land  and 
afterwards  does  waste,  he  will  not  be  entitled  to  emblements.  See 
also  Com.  Dig.  Biem  (G,  2);  and  the  judgment  of  Lord  Mansfield  in 
Wigglesworth  v.  Dallison,  1  Dougl.  207. 

(a)  Davis  v.  Thompson,  1  Shep.  209;  Sherburn  •;;.  Jones,  2  App. 
70  ;  Davis  v.  Brocklebank,  9  N.  II.  73. 


326  LANDLORD    AND    TENANT. 

other  icrit  of  execuiion  should  issue,  it  should  be  lawful 
for  the  lessor  to  re-enter  into  the  demised  premises, 
and  the  same  again  to  have,  re-possess,  and  enjoy,  as  in 
his  former  estate." 

This  condition  was  broken  by  the  tenant  allowing  an 
execution  to  issue  against  him  ;  the  landlord  re-entered 
for  the  forfeiture,  and  the  question  arose  whether  the 
tenant  was  entitled  to  the  emblements  on  this  determi- 
nation of  his  tenancy.  This  question  arose,  not  directly 
between  him  and  the  landlord,  but  between  the  land- 
lord and  the  assignees  under  a  commission  in  bank- 
ruptcy which  had  subsequently  been  taken  out,  and 
who  stood,  with  regard  to  these  crops,  in  the  same 
position  precisely  as  the  bankrupt  himself.  The  Court, 
after  a  long  discussion,  in  which  all  the  authorities 
were  referred  to,  held  that  the  lessor  was  entitled  to 
the  crops,  for  that  it  was  the  lessee's  own  fault  to  break 
the  condition,  and  that,  though  it  was  true  that  pro- 
cess of  law  was  necessary  to  complete  the  breach,  still 
such  legal  process  having  issued  in  consequence  of  his 
default,  must  be  considered  as  produced  by  his  own  act 
rather  than  by  that  of  the  law.  To  use  the  words  of 
Baron  (then  Mr.  Justice)  Alderson,  "  The  lessee 
incurred  a  forfeiture  by  his  own  act;  the  lessor  had 
stipulated  that  if  the  lessee  contracted  a  debt  which 

should  *be  followed  up  by  iudCTment  and  ex- 
r  2531  i      .?  J     p 

'-         -*    ecution,  or  committed  an  act  of  bankruptcy 

followed  up  by  a  commission,  the  lessor  should  re-enter 
and  have  the  land  as  of  his  former  estate.  It  seems  to 
me  that  the  legal  consequences  only  qualify  the  act  of 
the  lessee,  because  that  act  pervades  all  the  subsequent 
proceedings ;  for  the  commission  could  not  issue  unless 
there  had  been  an  act  of  bankruptcy,  nor  the  execu- 
tion unless  there  had  been  a  previous  debt ;  and  if  the 
lessee  stipulates  that  in  such  case  he  shall  be  turned 


EMBLEMENTS.  327 

out  of  possession,  it  is  by  his  own  act  that  he  is  turned 
out." 

Now,  with  regard  to  the  question,  what  articles  pass 
under  the  denomination  of  emblements.  The  word 
emblements  only  extends  to  such  vegetable  productions 
as  yield  an  annual  profit,  such,  for  instance,  as  wheat 
or  oats  ;(«)  and,  therefore,  if  the  tenant  of  an  uncertain 
estate  plant  or  sow  trees  or  any  other  thing  which 
takes  more  than  a  year  to  come  to  perfection,  his 
interest  in  it  is  gone  when  his  estate  determines.  See 
1  Inst.  55  b.^  *And  this  doctrine  was  affirmed  ^ 
in  the  case  of  Graves  v.  Weld.,  5  B.  &  Ad.  105,  ■-  "'  -' 
(27  E.  C.  L.  R.  53,),  after  a  most  elaborate  discussion. 
In  that  case  a  tenant  for  ninety-nine  years,  detprmin- 

^  Lord  Coke  says,  in  this  place,  "But  if  the  lessee  plant  young 
fruit-trees,  or  young  oaks,  ashes,  elms,  &c.,  or  sow  the  ground  with 
acorns,  &c.,  there  the  lessor  may  put  him  out  notwithstanding,  because 
they  will  yield  no  present  annual  profit."  See  also  Com.  Dig.  Biens 
(H).  Emblements  may  be  claimed  in  hemp,  saffron,  flax,  and  the 
like ;  in  melons  and  potatoes ;  and  also  in  hops  although  they  spring 
from  old  roots,  because  they  are  annually  manured  and  require  culti- 
vation. See  Wentw.  Off.  Ex.  147,  153,  (14th  Edit.);  Co.  Litt.  55 
b,  note  1  ;  Latham  v.  Atwood,  Cro.  Car.  515  ;  the  judgment  of  Mr. 
Justice  Bayley,  in  Evans  v.  Roberts,  5  B.  &  C.  832,  (11  E.  C.  L.  R. 
701,);  and  \V^illiams  on  Executors,  597.  Growing  grass,  however, 
even  if  grown  from  seed,  cannot  be  taken  as  emblements ;  for  al- 
though it  may  be  increased  by  cultivation,  it  cannot  be  sufficiently 
distinguished  from  the  merely  natural  product  of  the  soil.  See  Co. 
Litt.  56  a;  1  Roll.  Ab.  728;  Com.  Dig.  Biens  (G,  1);  and  Gilb. 
Evid.  215,  216.  But  it  appears  to  be  otherwise  with  respect  to  arti. 
ficial  grasses,  such  as  clover,  and  the  like.  4  Burn's  Eccl.  Law,  410 
(9th  Edit.) 

(a)  It  is  said  that  the  right  to  emblements  does  not  attach  till  the 
seed  is  sown  ;  preparing  the  laud  for  the  reception  of  the  seed  does 
not  confer  it.     Price  v.  Pickett,  21  Ala.  741. 


328  LANDLORD    AND    TENANT. 

able  on  three  lives,  had  sowed  his  land,  in  the  spring 
of  1830,  with  barley,  and  in  the  May  of  the  same  year 
he  sowed  broad  clover  seed  along  with  the  barley.  In 
the  autmnn  of  that  same  year  1830,  he  reaped  the 
barley,  and  in  doing  so  cnt  off  a  little  of  the  clover 
which  had  sprung  up,  and  which,  it  seems,  has  the 
effect  of  improving  the  barley  straw.  But  before  the 
time  came  for  taking  the  main  crop  of  clover  for  hay, 
which  would  have  been  in  the  autumn  of  the  following 
year,  the  last  of  the  three  lives  expired,  and  the 
tenant's  interest  of  course  expired  along  with  it;  so 
that  the  question  arose,  whether  the  tenant  was 
entitled  to  this  crop  of  clover  under  the  head  of  emhle- 
ivenls ;  for  it  was  clear  that  if  the  crop  could  be  con- 
sidered emblements,  he  was  entitled  to  it,  inasmuch  as 
his  estate  having  determined  by  the  act  of  God,  and 
without  any  default  of  his  0A\ai,  he  clearly  fell  Avithin 
the  class  of  persons  who  have  a  right  to  emblements. 
The  question  therefore  was  whether  the  clover  was 
emhlements,  and  it  was  objected  that  it  could  not  be  so 
considered,  since  the  crop  was  not  to  be  taken  within 
v*()f\f\-[  ^  year  after  the  time  of  sowing  it;  *and  the 
Court  considered  that  objection  to  be  well 
founded.  "  In  the  very  able  argument  before  us," 
said  the  Lord  Chief  Justice,  delivering  the  judgment 
of  the  Court,  "  both  sides  agreed  as  to  the  principle 
upon  which  the  law  which  gives  emblements  was 
originally  established.  That  principle  was,  that  the 
tenant  should  be  encouraged  to  cultivate  by  being  sure 
of  receiving  the  fruits  of  his  laboui';  but  both  sides 
were  also  agreed,  that  the  rule  did  not  extend  to  give 
the  tenant  all  the  fruits  of  his  labour,  or  the  right 
might  be  extended  in  that  case  to  things  of  a  more 
permanent  nature,  as  trees,  or  to  more  crops  than  one ; 
for  the  cultivator  very  often  looks  for  a  compensation 


EMBLEMENTS.  329 

for  his  capital  and  labour  in  the  produce  of  successive 
years.  It  was,  therefore,  admitted  by  each,  that  the 
tenant  could  be  entitled  to  that  species  of  product  only 
which  grows  by  the  industry  and  manurance  of  man, 
and  to  one  crop  only  of  that  product.  But  fhe  plaintiff 
insisted  that  the  tenant  was  entitled  to  the  crop  of  any 
vegetable  of  that  nature,  whether  produced  annually 
or  not,  which  was  growing  at  the  time  of  the  cesser  of 
the  tenant's  interest ;  the  defendant  contended  that  he 
was  entitled  to  a  crop  of  that  species  only  whicli  ordi- 
narily repays  the  labour  by  lohicli  it  is  produced  toithin 
the  year  in  ivhich  that  labour  is  bestowed,  though  the 
crop  may,  in  extraordinary  seasons,  be  delayed  beyond 
that  period.  And  the  latter  proposition  we  cpnsider 
to  be  the  law,"(a) 

*The  last  thing  to  be  mentioned  with  regard  ^^~^^ 
to  this  subject  of  emblements  is,  that  where 
the  tenant  is  entitled  to  emblements,  he  is  also  entitled 
to  free  ingress,  egress,  and  regress  to  reap  and  carry 
them.  This  is  laid  down  by  Lord  Coke,  1  Inst.  56  a ; 
and  it  is  also  laid  down  in  Shepherd's  Touchstone, 
244,  that  if  the  tenant  sell  the  emblements,  as  he  may 
do,  the  vendee  will  have  similar  rights ;  and,  indeed, 
all  this  is  clear  upon  the  ordinary  principle  that  quando 
lex  aliquid  concedit,  id  etiam  concedere  videtur  sine  quo, 
ea  res  quce  co7iceditur  esse  non  potest? 

''  But  the  person  who  is  entitled  to  enter  to  take  away  the  emble- 
ments, has  no  right  to  the  exclusive  occupation;  and  it  is  doubted  in 
Plowden's  Queries,  whether  the  personal  representative  of  a  tenant 
for  life  is  not  bound  to  pay  rent  for  the  land  till  the  corn  is  ripe;  See 
Williams  on  f^xecutors,  605.  See  also  as  to  the  right  of  an  outgoing 
tenant  to  enter  and  take  crops,  to  which  he  is  entitled  under  a  custom 
of  the  country,  Griffiths  v.  Puleston,  13  M.  &  W.  35S.* 

{a)  Evans  v.  Englehart,  6  Gill.  &  Johns.  190 ;  Singleton  v.  Sin- 


330  LANDLORD    AND    TENANT. 

Now  these  points  with  regard  to  emblements  depend 
upon  the  common  law,  and  regulate  all  cases  where 
there  is  no  contract  on  the  subject  between  the  land- 
lord and  tenant.  But,  as  I  said  at  the  commencement 
of  this  Lecture,  the  matter  frequently  becomes  the  sub- 
ject of  contract  either  express  or  implied  from  the  cus- 
tom of  the  country ;  and  you  will  frequently  find,  that 
by  virtue  either  of  such  express  or  implied  stipulation, 
the  out-going  tenant  has  a  right  to  his  away-going  crop 
as  it  is  called,  at  the  determination  of  his  tenancy. 
r*9T71  -^°^^'  where  *there  are  express  terms  to  that 
effect  in  the  lease  or  agreement  under  which 
the  tenant  holds,  there  can  be  no  dispute  as  to  his 
right ;  but,  even  if  there  be  no  express  terms,  it  is  held 
that  the  custom  of  the  country  may  be  imported  by 
implication  into  a  lease  which  contains  nothing  incon- 
sistent with  it,  and  may  entitle  the  tenant  to  take  the 
crop  growing  upon  the  land  at  the  determination  of 
his  tenancy,  and  to  do  everything  that  is  necessary  for 
that  purpose ;  (see  Beavan  v.  Delahay^  1  H.  Bl.  5 ; 
Boraston  v.  Green,  16  East,  71 ;  GaldecoU  v.  Smythies, 
7  C.  &  P.  808,)  (32  E.  C.  L.  K  884,) ;  and  this,  even 
when  the  lease  into  which  it  is  sought  to  import  the 
custom  is  under  seal,  as  was  decided  in  Wigglesworih  v. 
Dallison,  Dougl.  201,  the  great  case  on  this  subject, 
and  in  which  Lord  Mansfield  said,  "  We  have  thought 
of  this  case,  and  we  are  all  of  opinion  that  the  custom 
is  good.  It  is  just,  for  he  who  sows  ought  to  reap, 
and  it  is  for  the  benefit  and  encouragement  of  agricul- 
ture. It  is,  indeed,  against  the  general  rule  of  law 
concerning   emblements,   which    are   not   allowed   to 

tenants  who  know  when  their  term  is  to  cease ;  because, 

\ . 

gleton,  5  Dana,  92  ;  Penhullow  v.  Dwight,  7  Mass.  34  ;  Stewart  v. 
Doughty,  9  JuliQs.  108. 


EMBLEMENTS.  331 

it  is  held  to  be  their  fault  or  folly  to  have  sown,  when 
they  knew  their  interest  would  expire  before  they 
could  reap.  But  the  custom  of  a  particular  place  may 
rectify  what  otherwise  would  be  imprudence  or  folly. 
The  lease  being  by  deed  does  not  vary  the  case.  The 
custom  does  not  alter  or  contradict  the  agreement  in 
the  lease ;  it  only  *superadds  a  right  which  is 
consequential  to  the  taking."-(a)  •-         -' 

8  See  the  notes  to  this  case,  2  Smith's  L.  C.  305,  and  ante,  p.  203, 
note  21. 

{a)  The  law,  as  laid  down  in  the  text,  may  be  said  to  be  an  accu- 
rate general  exposition  of  the  law  on  the  subject  of  enablements,  as 
it  prevails  generally  in  the  United  States. 

By  the  custom  of  Pennsylvania,  New  Jersey,  and  Delaware,  a 
tenant  for  a  term  certain  is  entitled  to  what  is  called  the  way-going 
crop.  In  Demi  v.  Bossier,  a  case  in  Pennsylvania,  1  Penn'a,  224, 
Judge  Huston  says :  '<  By  the  common  law,  a  tenant,  after  the  expi- 
ration of  his  lease,  and  removal  from  the  tenement,  had  no  right  to 
return;  and  hence  the  crops  growing  and  ungathered  were  lost  to 
him.  The  law  in  this  State  has  varied  from  that,  as  to  what  has  been 
called  the  way-going  crop,  which,  heretofore,  has  been  confined  to 
grain  sown  in  the  autumn  to  be  reaped  the  next  harvest;  and  no  dif- 
ference has  yet  been  established  between  a  tenant  who  pays  a  rent  in 
money,  and  one  who  gives  as  rent  to  his  landlord  a  share  of  the  pro- 
duce of  the  farm.  The  usage  and  general  understanding  of  the 
country  form  a  part  of  general  agreements,  unless  otherwise  specified. 
If  a  tenant  rents  a  farm  for  one  year,  it  is  understood  he  is  to  take 
one  crop  of  each  kind  of  grain  cultivated,  and  that  he  is  to  mow  as 
many  crops  of  grass  as  the  meadows  will  produce."  The  right  need  not 
be  mentioned  in  the  lease ;  and,  after  the  expiration  of  the  lease,  the 
tenant  may  enter  to  gather  the  crop,  or  may  maintain  trespass  against 
the  lessor  or  his  vendee  if  they  cut  it.  Stultz  v.  Dickey,  5  Binn.  285; 
Difierdoffer  v.  Jones  (cited),  5  Binn.  289,  and  2  Binn.  487  ;  Biggs  v. 
Brown,  2  S.  &  R.  14 ;  Demi  v.  Bossier,  1  Penn'a,  224 ;  Van  Doren 
V.  Everitt,  2  South.  460;  Templeman  v.  Biddle,  1  Harriug.  522. 


332  LANDLORD    AND    TENANT. 

However,  if  the  custom  would  be  inconsistent  with 
the  express  terms  of  the  lease,  it  cannot  be   incor- 

Agricultural  leases,  in  these  States,  generally  begin  in  the  spring, 
either  in  the  end  of  March  or  beginning  of  April.  The  tenant  whose 
lease  expires  in  the  spring,  may  sow  grain  the  autumn  previous,  to 
be  cut  the  harvest  after  his  tenancy  expires — but  if  he  puts  in  the 
spring  crop,  the  oats  for  instance,  before  he  leaves  he  is  not  entitled  to 
reap  it,  but  loses  it,  unless  by  express  contract.  In  Demi  v.  Bossier, 
before  cited,  the  tenant  had  made  such  an  attempt.  Judge  Houston 
says :  "  If  a  tenant,  on  a  monied  rent,  can  sow  with  oats,  flax,  or 
other  grain  in  March,  before  his  lease  expires,  which  is  always  about 
the  first  of  April,  he  in  fact  gets  the  benefit  of  the  farm  for  two  years, 
although  he  pays  the  rent  of  but  one.  So,  if  he  takes  the  farm  on 
the  shares,  and  after  raising  the  summer  crop  one  year,  sows  in  March 
all  the  grounds  with  oats,  no  tenant  can  go  on  it  the  next  year,  or  he 
will  have  no  land  to  cultivate  for  spring  crops.  The  law  has  been 
well  and  justly  settled,  and  favorably  to  tenants.  The  present 
attempt  is  unrcasouable,  and  pregnant  with  injustice  to  one  party, 
and  would  eventuate  in  injury  to  tenants  as  a  class;  for  the  tenant 
■who  rents  a  farm  for  the  ensuing  year,  will  not  know  whether  he  can 
put  in  a  spring  crop  until  he  knows  whether  the  month  of  March  will 
be  clement  or  inclement,  or  whether  the  previous  tenant  was  regard- 
ful of  the  rights  and  interests  of  others,  and  the  general  laws  and 
usages  of  the  country." 

The  Courts  in  Pennsylvania  have  gone  further,  and  said  :  "  The 
way-going  crop  includes  as  well  the  straw  as  the  grain,  which  the 
tenant  may  remove,  and  dispose  of  as  he  pleases,  being  subject  only 
to  the  terms  of  his  contract,  and  not  to  any  supposed  custom  of  the 
country  on  the  subject."  Craig  v.  Dale,  1  Watts  &  Ser.  509;  Iddings 
V.  Nagle,  2  Watts  &  Ser.  23;  Rank  v.  Rank,  5  Barr,  213.  And  in 
North  Carolina,  the  same  law  is  held  with  regard  to  the  manure  made 
on  the  premises.  Smithwick  v.  Ellison,  2  Iredell,  326  Perhaps  the 
question  of  good  husbandry  was  overlooked  in  these  cases.  (See  the 
following  note.) 

In  Delaware,  an  incoming  tenant  is  held  to  be  entitled,  from  cus- 
tom and  necessity,  to  enter  before  his  term  commences,  and  fill  the 
ice-house  on  the  premises.     State  v.  M'Clay,  1  Ilarring.  520. 


EMBLEMENTS.  333 

porated    into    it;  see    Wehb  v.  PJummer,   2    B.   &  A. 
746;  Boraston  v.  Green,  16  East,  11. \a) 

^  As  it  is  often  difficult  in  practice  to  determine  whether  particular 
customs  of  the  country  are  or  are  not  inconsistent  with  the  special 
stipulations  of  the  lease,  it  may  be  useful  to  refer  here  to  the  facts  of 
some  of  the  cases  on  this  subject.  In  Hutton  v.  Warren,  1  M.  & 
W.  466,*  which  is  one  of  the  principal  modern  decisions  upon  it,  the 
evidence  showed  that  by  the  custom  of  the  country,  the  tenant  was 
bound  to  farm  according  to  a  certain  course  of  husbandry  for  the 
whole  of  his  tenancy,  and  that  on  quitting  the  premises  he  was  en- 
titled to  a  fair  allowance  for  seed  and  labour  on  the  arable  land,  and 
was  obliged  to  leave  the  manure  if  the  landlord  was  willing  to  pur- 
chase it.  The  lease  under  which  the  tenant  held,  contained  a  stipu- 
lation, that  he  would  consume  a  certain  proportion  of  the  hay  and 
straw  on  the  farm,  and  spread  the  manure  arising  therefrom  upon  the 
land,  and  leave  such  part  of  the  manure  as  should  not  be  so  spread 
on  the  premises  at  the  end  of  the  term  for  the  use  of  the  landlord, 
upon  his  paying  a  reasonable  price  for  it.  It  was  held  that  the  cus- 
tom mentioned  above,  was  not  inconsistent  with  the  stipulation  in  the 
lease  as  to  leaving  the  manure  on  the  premises,  since  the  only  altera- 
tion made  by  it  was  that  the  tenant  was  obliged  to  spend  more  than 
the  produce  of  the  farm  on  the  premises,  being  paid  for  it  in  the  same 
way  as  he  would  have  been  for  that  which  the  custom  required  him 
to  spend.  The  following  observations  upon  some  of  the  earlier 
decisions  on  this  subject,  are  contained  in  the  judgment  in  this  case, 
and  explain  very  clearly  the  extent  and  application  of  the  rule  which 
is  mentioned  in  the  text.  <<  In  Wigglesworth  v.  Dallison,  afterwards 
af&rmed  on  writ  of  error,"  said  the  Court,  ''  the  tenant  was  allowed 
an  away-going  crop,  though  there  was  a  formal  lease  under  seal. 
There  the  lease  was  entirely  silent  on  the  subject  of  such  a  right,  and 
Lord  Mansfield  said  that  the  custom  did  not  alter  or  contradict  the 
lease,  but  only  superadded  something  to  it.  This  question  subse- 
quently came  under  the  consideration  of  the  Court  of  King's  Bench, 
in  the  case  of  Senior  v.  Armytage,  reported  in  Mr.  Holt's  Nisi  Prius 
Cases  (p.  197.)  (3  E.  C.  L.  R.  84,),  In  that  case,  which  was  an  ac- 
tion by  a  tenant  against  his  landlord  for  a  compensation  for  seed  and 

(a)  Harris  v.  Carson,  7  Leigh,  632. 


334  LANDLORD    AND    TENANT. 

*I  may  as  well  observe   before  concluding 
'-""-'    this  subject,  that  there  are  other  matters  which 

labour  under  the  denomiuation  of  tenant  right,  Mr.  Justice  Bayley, 
on  its  appearing  that  there  was  a  written  agreement  between  the  par- 
ties, nonsuited  the  plaintiff.  The  Court  afterwards  set  aside  that 
nonsuit,  and  held,  as  appears  by  a  manuscript  note  of  that  learned 
judge,  that  though  there  was  a  written  contract  between  landlord  and 
tenant,  the  custom  of  the  country  would  be  still  binding,  if  not  incon- 
sistent with  the  terms  of  such  written  contract;  and  that,  not  only  all 
common-law  obligations,  but  those  imposed  by  custom,  were  in  full 
force  where  the  contract  did  not  vary  them.  Mr.  Holt  appears  to 
have  stated  the  case  too  strongly  when  he  said,  that  the  Court  held 
the  custom  to  be  operative  unless  the  agreement  in  exjyress  terms  ex- 
cluded it;  and  probably  he  has  not  been  quite  accurate  as  attributing 
a  similar  opinion  to  the  Lord  Chief  Baron  Thompson,  who  presided 
on  the  second  trial.  It  would  appear  that  the  Court  held  that  the 
custom  operated,  unless  it  could  be  collected  from  the  instrument, 
either  expressly  or  impliedly,  that  the  parties  did  not  mean  to  be 
governed  by  it.  On  the  second  trial,  the  Lord  Chief  Baron  Thomp- 
son held  that  the  custom  prevailed,  although  the  written  instrument 
contained  an  express  stipulation  that  all  the  manure  made  on  the  farm 
should  be  spent  on  it,  or  left  at  the  end  of  the  tenancy,  without  any 
compensation  being  paid.  Such  a  stipulation  certainly  does  not  ex- 
clude by  implication  the  tenant's  right  to  receive  a  compensation  for 
seed  and  labour.  The  next  reported  case  on  this  subject  is  that  of 
"Webb  V-  Plummer,  (2  B.  &  A.  746),  in  which  there  was  a  lease  of 
down  land,  with  a  covenant  to  spend  all  the  produce  on  the  premises, 
and  to  fold  a  flock  of  sheep  upon  the  usual  part  of  the  farm  ;  and 
also,  in  the  last  year  of  the  term,  to  carry  out  the  manure  on  parts 
of  the  fallowed  farm  pointed  out  by  the  lessor,  the  lessor  paying  for 
the  fallowing  land  and  carrying  out  the  dung,  but  nothing  for  the 
dung  itself,  and  paying  for  grass  on  the  ground,  and  thrashing  the 
corn.  The  claim  was  for  a  customary  allowance  for  folduye  (a  mode 
of  manuring  the  ground),  but  the  Court  held,  that  as  there  was  an 
express  provision  for  some  payment  on  quitting  for  the  things  cove- 
nanted to  be  done,  and  an  omission  of  foldage,  the  customary  obliga- 
tion to  pay  for  the  latter  was  excluded.  No  doubt  could  exist  in  that 
case  but  that  the  language  of  the  lease  was  equivalent  to  a  stipulation 


EMBLEMENTS.  OoO 

occur  at  *the  determination  of  an  agricultural   ^^^^^, 

1/0001 
tenancy,  and  for  which  you  will  find  that  the    '- 

that  the  lessor  should  pay  for  the  things  mentioned,  and  no  moreP 
The  rule  mentioned  in  the  text  is  also  illustrated  by  the  later  case  of 
Clarke  v.  Roystone,  13  M.  &  W.  752.*  In  this  case,  which  was  an 
action  by  a  landlord  against  his  tenant,  the  declaration  alleged  that 
the  plaintiff  had  given  possession  of  a  farm  whereon  he  had  laid  cer- 
tain quantities  of  manure  to  the  defendant  as  tenant,  and  that  in  con- 
sideration of  this,  and  that  the  plaintiff  would  permit  the  defendant 
to  have  the  benefit  of  the  manure,  the  defendant  promised  to  pay  to 
the  plaintiff  so  much  money  as  he  deserved  to  have,  according  to  the 
custom  of  the  country  where  the  farm  was  situated.  At  the  trial,  the 
plaintiff  gave  in  evidence  a  written  agreement  between  him  and  the 
defendant,  by  which  it  appeared  that  the  land  had  been  manured  with 
a  certain  quantity  of  manure  per  acre,  and  that  the  tenant  agreed  that 
the  land  when  given  up  by  him  should  be  left  in  the  same  state,  or 
that  he  would  allow  a  valuation  to  be  made.  It  was  held,  that  this 
written  agreement  was  inconsistent  with  the  custom  of  the  country  as 
proved  in  the  case,  and  therefore  excluded  it.  ''  The  declaration," 
said  Baron  Parke,  "  is  upon  an  executory  contract,  to  pay  to  the 
plaintiff  so  much  money  on  request,  and  thereupon  that  the  defend- 
ant, the  tenant,  was  to  have  a  tenancy  according  to  the  custom  of  the 
country.  Now  what  is  the  custom  of  the  country  ?  It  is  to  pay  half 
tillage  upon  coming  in,  and  of  course  to  receive  half  tillage  upon 
going  out.  Then  if  you  import  these  words  into  the  alleged  contract, 
and  suppose^the  contract  to  be,  that  the  tenant  shall  do  that  which 
the  custom  of  the  country  requires,  then  the  defendant  is  to  pay  so 
much  money  upon  request  as  is  equal  to  the  half  tillage.  That  is 
the  nature  of  the  contract  described  in  the  declaration.  Now  look  at 
the  proof.  The  proof  is,  that  the  defendant  was  to  occupy  these 
closes  of  land,  which  were  manured  the  year  before  j  and  then  there 
was  a  stipulation  that,  at  the  end  of  the  term  mentioned  in  the  con- 
tract, he  should  put  the  premises  exactly  in  the  same  state  as  to 
manure  which  they  were  in  at  the  commencement  of  the  tenancy,  or 
submit  to  a  valuation ;  that  is,  that  he  should  pay  for  the  deteriora- 
tion of  the  estate,  according  to  the  value  put  upon  it  by  competent 
persons,  by  the  want  of  such  manure.  Therefore  here  is  a  stipula- 
tion, that  the  premises,  upon  the  tenant's  going  out,  shall  be  left  in 


336  LANDLORD    AND    TENANT. 

^  custom  of  the  *coiintry  frequently  provides; 

'-"'-'  thus  you  will  often  find  that  the  tenant  is 
obliged  by  custom  to  leave  hay,  straw,  and  manure 
upon  the  premises,  and  entitled  by  custom  to  remune- 
ration for  what  is  so  left ;  and  so  you  will  find  he  is 
often  entitled  to  a  compensation  for  the  seeds  left,  and 
the  tillage  bestowed  upon  the  land  before  his  departure, 
and  of  which  he  will  not  have  the  benefit.  And  when- 
ever these  or  similar  customs  exist,  the  rule  is  just  the 
same  as  with  regard  to  customs  regulating  the  way- 

the  same  condition  they  were  in  at  the  time  he  entered,  or  that  he 
shall  pay  for  the  difference  at  the  end  of  the  term.  That  excludes 
the  idea  of  the  payment  of  any  money  down  at  the  time  of  entrj-, 
because,  at  the  end  of  the  term,  he  is  to  put  them  into  the  same  con- 
dition, or  to  pay  damages  according  to  their  deterioration.  That  is 
not  according  to  the  custom  of  the  country  ;  and  it  appears  to  me, 
therefore,  that  the  allegation  in  the  declaration  is  not  proved  ;  that 
the  custom  of  the  country  is  excluded  by  the  terms  of  the  contract." 
See  further  as  to  what  stipulations  operate  to  exclude  evidence  of  a 
custom  of  the  country,  Wiltshear  v.  Cottrell,  1  E.  &  B.  674,  (72  E. 
C.  L.  R.  674,).  "Where  the  outgoing  tenant  is,  by  the  custom  of  the 
country,  entitled  to  a  share  of  the  crops  sown  during  the  last  year  of 
the  tenancy,  his  interest  is  not  a  mere  easement,  but  amounts  to  a  pos- 
session, and  it  is  a  good  answer  to  an  action  of  trespass  brought 
against  him  in  respect  of  his  entry  to  take  the  crops  taway.  Bea- 
van  V.  Delahay,  1  H.  Bl.  5;  Griffith  v.  Puleston,  13  M.  &.  W.  358.* 
Where  the  custom  is  that  the  incoming  tenant  shall  pay  for  the  fal- 
lows, &c  ,  and  shall  be  repaid  upon  his  leaving  the  premises,  he  may 
recover  the  amount //-om  his  landlord  if  there  be  no  incoming  tenant. 
Faviell  V.  Gaskoin,  7  Exch.  273.  It  must  be  observed,  that  in  all 
these  cases  the  question  as  to  what  is  the  implied  contract  created  by 
the  custom,  appears  to  be  one  of  fact  for  the  jury.  When  a  custom 
of  the  country  is  proved  to  exist,  it  will  not  be  assumed  to  be  confined 
only  to  tenancies  which  are  not  created  by  writing,  but  will  be  con- 
sidered to  be  applicable  to  all  tenancies  in  whatever  way  they  may  be 
created,  unless  it  is  impliedly  or  expressly  excluded  by  the  contract. 
Wilkins  V.  Wood,  17  L.  J.,  Q.  B  319. 


EMBLEMENTS.  337 

going  crops ;  namely,  that  if  there  be  nothing  in  the 
lease  inconsistent  with  the  custom,  the  custom  ^^.^^^^ 
*may  be  incorporated  into  it  by  implication,  '-  "'■' 
but  that  if  there  be  any  inconsistency  between  the  two, 
the  custom  gives  way  and  the  express  contract  of  the 
parties  prevails,  and  this  is  on  the  general  principle  of 
law,  that  expressum  cessare  faclt  taciturn.  See  Roherts 
V.  Barher,  1  Cr.  &  M.  808;*  Dalhy  v.  Birst,  I  Bro.  & 
Bing.  224,  (5  E.  C.  L.  R.  600,)  ;  and  the  elaborate 
judgment  of  [the  Court  delivered  by]  Baron  Parke  in 
Mutton  V.  Warren,  1  M.  &  W.  466  *^\«) 

^°  See  the  last  note. 

(o)  See  Mousley  v.  Ludlum,  9.  Eng.  Law  &  Eq.  R.  319. 

With  regard  to  the  manure  made  on  premises  let  for  agricultural 
purposes,  it  has  been  held  that  good  husbandry  requires  it  to  re- 
main, and  therefore  the  outgoing  tenant  may  not  remove  it. 

Chief  Justice  Gibbs  in  Brown  v.  Crump,  1  Marsh.  567,  (4  E.  C. 
L.  R.  473,)  says,  «  The  doctrine  which  I  have  often  heard  Mr.  J.  Buller 
lay  down  is,  that  every  tenant,  where  there  is  no  particular  agree- 
ment dispensing  with  that  engagement,  is  bound  to  cultivate  his  farm 
in  a  husbandlike  manner,  and  to  consume  the  produce  on  it ;  this  is 
an  engagement  which  arises  out  of  the  letting,  and  which  the  tenant 
cannot  dispense  with,  unless  by  special  agreement."  In  Daniels  v. 
Pond,  21  Pick.  371,  Chief  J.  Shaw  in  delivering  the  opinion  of 
the  Court  says,  "  Manure  made  on  a  farm,  occupied  by  a  tenant  at 
will,  or  for  years,  in  the  ordinary  course  of  husbandry,  consisting  of 
the  collections  from  the  stable  and  barn-yard,  or  of  composts  formed 
by  an  admixture  of  these  with  the  soil,  or  other  substances,  is  by 
usage,  practice,  and  the  general  understanding,  so  attached  to,  and 
connected  with  the  realty,  that  in  the  absence  of  any  express  stipula- 
tion on  the  subject,  an  outgoing  tenant  has  no  right  to  remove  the 
manure  thus  collected,  or  to  sell  it  to  be  removed ;  and  that  such 
removal  is  a  tort  for  which  the  landlord  may  have  redress."  In  Las- 
sell  V.  Reed,  6  Greenleaf,  222,  Chief  Justice  Mellcn  said,  <'  that  the 
claim  of  the  tenant  to  remove  the  manure  made  on  the  premises, 
even  if  made  by  his  own  cattle,  and  with  his  own  fodder,  had  no 

22 


338  LANDLORD    AND    TENANT. 

Next  with  regard  to  fixtures.  I  use  this  word  to 
denote  certain  things  which  are  fixed  to  the  freehold 

foundation  in  justice  or  reason,  and  such  a  claim  the  laws  of  the 
land  cannot  sanction."  In  Middlebrook  v.  Corwen,  15  Wend.  169, 
Chief  Justice  Nelson  sajs,  ''  that  when  a  farm  is  let  for  agricultural 
purposes,  (no  custom  or  stipulation  in  the  case)  the  manure  does  not 
belong  to  the  tenant,  but  to  the  farm ;  and  the  tenant  has  no  more 
right  to  dispose  of  it  to  others,  or  remove  it  himself  from  the  pre- 
mises than  he  has  to  dispose  of  or  remove  a  fixture."  And  Judge 
Lewis,  in  the  case  of  Lewis  v.  Jones,  5  Harris,  264,  says,  "  It  is 
implied  from  the  letting  of  a  farm  for  agricultural  purposes,  that  the 
tenant  will  cultivate  the  land  according  to  the  rules  of  good  hus- 
bandry. This  is  as  much  a  part  of  the  contract  as  that  he  shall 
deliver  up  possession  at  the  end  of  the  term,  or  that  he  shall  do 
no  waste.  If  the  manure  which  is  made  by  the  feeding  and  bedding 
of  his  stock  on  the  premises,  according  to  the  usual  course  of  hus- 
bandry, is  to  be  disposed  of  and  carried  to  another  farm,  it  only 
creates  a  necessity  for  the  purchase  of  other  fertilizing  materials  to 
keep  the  land  in  good  order  for  the  production  of  crops,"  &c. 
"  When  a  farm  is  let  for  agricultural  purposes,  the  tenant  cannot 
justify  the  removal  of  any  portion  of  the  manure  made  on  the 
premises,  by  occasionally  employing  his  teams  in  business  not 
connected  with  the  cultivation  of  the  soil,  and  supplying  them  in 
part  with  hay  and  gi'ain  purchased  from  others,  so  long  as  the 
manure  thus  made  is  commingled  with  that  made  from  the  pro- 
duce of  the  farm."  In  Wain  ^■.  O'Connor,  a  milk  farm  was  held 
to  be  a  farm  used  for  agricultural  purposes  so  far  as  the  right  to 
remove  the  manure  was  concerned.     9  Leg.  Int.  97. 

The  only  American  decision  at  variance  with  the  cases  cited  above, 
is  believed  to  be  that  of  Smithwick  v.  Ellison,  2  Iredell,  326 ;  and 
there  the  question  does  not  seem  to  have  undergone  a  very  full  dis- 
cussion. The  doctrine  is  confined  to  farms  let  for  agricultural 
purposes,  Lewis  v.  Jones,  5  Harris,  266 ;  Needham  v.  Allison,  4 
Foster,  (N.  H.)  355. 

In  Middlebrook  v.  Corwen,  15  Wend.  169,  and  in  Stone  v.  Proctor, 
2  Chip.  113,  manure  accumulated  on  a  farm  in  the  ordinary  way,  is 
treated  as  a  fixture,  and  part  of  the  freehold. 

The  considerations  which  induced   the  above  decisions,  had  they 


FIXTURES.  339 

of  the  demised  premises,  but  which,  nevertheless,  the 
tenant  is  allowed  to  disannex  and  take  away,  provided 
he  exert  his  right  of  doing  so  within  the  time  allowed 
by  law/^ 

In  order  to  explain  clearly  the  doctrine  of  fixtures, 
which  is  one  of  very  great  practical  importance,  I  must 
remind  you  that  it  is  a  maxim  of  the  law  of  England, 
that  every  thing  which  is  once  annexed  to  the  free- 
hold becomes  part  and  parcel  thereof,  and  follows  the 
same  rules,  and  belongs  to  the  same  owners  as  that  to 
which  it  is  annexed/^  *Thus  if  the  tenant  :^c,.o-, 
build  a  house  upon  the  land,  he  cannot  pull  it   '-         -' 

^^  See  as  to  fixtures  generally,  Amos  and  Ferard  on  Fixtures;  the 
notes  to  Elwes  v.  Mawe,  2  Smith's  L.  C.  114,  and  ante,  p.  142,  note 
22.  The  term  "Jixture"  is  properly  applicable  to  something  annexed 
to  the  freehold ;  but  it  is  a  modern  word  which  is  often  used  in  a  larger 
sense,  and  is  generally  understood  to  comprehend  any  article  which  a 
tenant  has  a  power  of  removing.  See  the  judgment  in  Hallen  v. 
Runder,  1  Cr.  M.  &  R.  276  ;*  the  judgment  of  Baron  Parke  in 
Sheen  v.  Richie,  5  M.  &  W.  182,*  and  the  judgments  in  Wiltshear  v. 
Cottrell,  1  E.  &  B.  690,  (72  E.  C.  L.  R.  690,)  and  Elliott  v.  Bishop, 
24  L.  J.,  Exch.  33. 

^2  See  Co.  Litt.  53  a;  the  introduction  to  Amos  and  Ferard  on 
Fixtures,  and  the  judgment  of  Baron  Parke  in  Mackintosh  v.  Trot- 
been  fully  weighed,  it  would  seem,  should  have  produced  a  diiferent 
result  in  the  cases  of  Craig  v.  Dale,  1  W.  &  S.  509,  and  Iddings  v. 
Nagle,  2  W.  &  S.  23.  Farmers  would  unanimously  pronounce  it  bad 
husbandry  to  sell  the  straw  for  consumption  off  the  premises.  It  is 
from  the  straw  that  the  barn-yard  manure  in  a  great  measure  is 
made  :  and  in  many  of  the  interior  counties,  away  from  the  lime- 
stone regions,  it  is  the  only  fertilizer  to  be  had.  Though  the  high 
price  of  straw  in  the  neighborhood  of  large  cities  induces  some 
farmers  to  save  as  much  of  that  article  as  possible  for  market, 
enough  of  the  proceeds  is  always  invested  in  the  manure  which  a  city 
affords,  to  replace  in  the  barn-yard  the  loss  occasioned  by  the  sale  of 
the  straw.  Any  other  course  would  inevitably  impoverish  the  pre- 
mises.    See  the  case  of  Sarles  v.  Sarles,  3  Sandf.  Ch.  R.  601. 


340  LANDLORD    AND    TENANT. 

down  again  withont  committing  waste ;  and  generally, 
wherever  any  thing  is  once  firmly  and  permanently 
annexed  to  the  inheritance,  even  though  by  the  tenant 
himself,  he  cannot  remove  it  again,  unless  by  virtue  of 
express  stipulation  with  his  landlord,  or  of  some  excep- 
tion introduced  into  the  above  general  rule  of  the  law 
for  his  benefit. 

Now  it  was  found  in  very  early  times,  that  this  rule 
if  unrelaxed,  would  operate  very  harshly  upon  a  variety 
of  persons;  for  it  applied  not  only  to  the  case  of  a 
landlord  and  tenant,  but  to  that  of  an  heir,  who,  upon 
the  death  of  his  ancestor,  claimed  to  retain  the  fixtures 
as  against  the  personal  representative,  who  was  gene- 
rally a  nearer  relation.  It  applied  also  to  the  case  of 
a  particular  estate,  on  the  determination  of  which  the 
r*9fi4-l  i*6mainder-man  or  *reversioner  laid  claim  to 
fixtures  which  had  been  erected  during  its  con- 
tinuance. But  in  no  case  did  it  work  so  much  hard- 
ship as  in  that  between  landlord  and  tenant,  because 
the  latter  had  been  generally  paying  an  adequate  rent 

ter,  3  M.  &  W.  186.*  This  principle  of  law  is  expressed  by  the 
maxim  quidquid  plantatur  solo,  solo  cedit.  See  as  to  the  degree  of 
annexation  which  is  necessary  in  order  to  bring  any  article  within  the 
operation  of  the  rule  which  exempts  fixtures  from  distress,  Hellawell 
V.  Eastwood,  6  Exch.  295,  cited  ante,  p.  144,  note.  Where  the  re- 
lation of  landlord  and  tenant  does  not  exist,  and  a  chattel  has  been 
annexed  by  its  owner  to  the  freehold  of  another  in  such  a  manner 
that  it  may  be  severed  without  injury  to  the  freehold,  it  is  not  neces- 
sarily to  be  inferred  from  the  annexation  that  the  chattel  becomes  the 
property  of  the  freeholder.  It  is  a  question  of  fact  for  the  jury 
whether  this  is  so  or  not,  and  they  are  at  liberty  to  infer  from  the  cir- 
cumstance of  the  user  of  the  chattel  being  retained  by  the  original 
owner  of  it,  or  from  other  circumstances  of  a  like  nature,  that  it  was 
agreed  that  he  should  have  the  power  to  remove  it.  Wood  v.  Ilewett, 
8  Q.  B.  913,  (55  E.  C.  L.  E.  918,);  see  also  Lane  v.  Dixon,  3  C. 
B.  776,  (54  E.  C.  L.  R.  776,). 


FIXTURES.  341 

for  the  premises,  and  it  was  hard  that  the  landlord 
shoidd  have  not  only  that,  but  also  expensive  fixtures 
put  up  by  the  tenant,  and  paid  for  out  of  his  pocket. 

Now  the  hardship  of  this  general  rule  of  law  soon 
caused  it  to  be  relaxed  in  all  the  cases  I  have  men- 
tioned, and  the  relaxation  was  in  proportion  to  the 
hardship,  and  was  greatest  in  the  case  in  which  the 
hardship  had  been  greatest,  that,  namely  of  landlord 
and  tenant.^^  And  when  the  rule  was  thus  relaxed  it 
was  not  equally  so  with  regard  to  all  descriptions  of 
fixtures  put  up  by  the  tenant,  for  the  removal  of  some 
was,  as  I  shall  explain,  much  more  favored  than  that 
of  others. 

The  fixtures  which  a  tenant  is  allowed  to  disannex 
and  remove  are  of  two  classes — 

1st.  Those  wliicli  are  ^ut  up  for  the  ornament  of  the 
premises,  or  the  convenience  of  the  tenant^s  occupation. 

2ndly.  Those  ivhich  are  p)ut  up>  for  the  purpose  of  car- 
rying on  some  trade  or  husiness. 

With  regard  to  the  former  class,  there  are  many 
cases  in  which  the  tenant  has  been  allowed  to 
*remove  fixtures  put  up  for  convenience  or  ^^^^^^ 
ornament,  and  which  are  of  such  a  description  ^  -" 
as  to  be  capable  of  being  disannexed  without  any  per- 
manent injury  to  the  inheritance,  such,  for  instance,  as 
stoves  and  grates  fixed  into  the  chimney  with  brick- 
work, marble  chimney-pieces,  and  wainscot,  fixed  with 
screws.(rt)  See  Lawton  v.  Lawton,  3  Atk.  15 ;  R.  v. 
St.  Dunstan,  4  B.  &  C.  686,  (10  E.  C.  L.  R.  758,) ; 
Colegrave  v.  Dias  Santos,  2  B.  &  C.  76,  (9  E.  C.  L.  R. 
42,) ;  Winn  v.  Imjilhi/,  5  B.  &  A.  625,  (7  E.  C.  L.  R. 
214,);  and  Grymes  v.  Botoeren,  6  Bing.  437,  (19  E.  C. 
L.  R.  201,),  in  which  the  tenant  was  allowed  to  take 

13  See  the  judgment  of  the  Lord  Chief  Justice  Tindal  in  Grymes 
V.  Bowcren,  6  Bing.  439,  (19  E.  C.  L.  R.  201;). 


342  LANDLORD  AND   TENANT. 

away  a  pump  which  was  attached  to  a  stout  pei^pen- 
dicular  plank  resting  on  the  ground  at  one  end,  and  at 
the  other  end  fastened  to  the  wall  by  an  iron  pin, 
which  had  a  head  at  one  end  and  a  screw  at  the  other, 
and  went  completely  through  the  wall.  The  judgment 
of  the  Lord  Chief  Justice  Tindal  in  that  case  presents 
a  good  summary  of  the  law  Avith  regard  to  this  class  of 
fixtures,  and  shows  by  what  considerations  we  are  to 
be  guided  in  determining  whether  a  particular  article 
falls  within  the  class  of  removable  fixtures  or  not. 
"  It  is  difficult,"  says  his  lordship,  "  to  draw  any  very 
general,  and  at  the  same  time  precise  and  accurate  rule 
on  this  subject;  for  we  must  be  guided,  in  a  great 
degree,  by  the  circumstances  of  each  case,  the  nature 
of  the  article,  and  the  mode  in  which  it  is  fixed.  The 
pump,  as  it  is  described  to  have  been  fixed  in  this  case, 
appears  to  me  to  fall  within  the  class  of  removable 
fixtures.     The  rule  has  always  been  more  relaxed  as 

between  *landlord  and  tenant,  than  as  between 

r*2661  •        •  • 

L         -■    persons  standing  in    other   relations.     It  has 

been  holden  that  stoves  are  removable  during  the  term ; 
grates,  ornamental  chimney-pieces,  wainscots  fastened 
with  screws,  coppers,  and  various  other  articles;  and 
the  circumstance  that,  upon  a  change  of  occupiers, 
articles  of  this  sort  are  usually  allowed  by  landlords  to 
be  paid  for  by  the  in-coming  tenant  to  the  out-going 
tenant,  is  confirmatory  of  this  view  of  the  question. 
Looking  at  the  facts  of  this  case ;  considering  that  the 
article  in  dispute  was  of  domestic  convenience ;  that 
it  was  slightly  fixed ;  was  erected  by  the  tenant ;  could 
be  moved  entire ;  and  that  the  question  is  between  the 
tenant  and  his  landlord;  I  think  the  rule  should  be 
made  absolute." 

In  this  judgment  the  Lord  Chief  Justice  lays  pecu- 
liar stress  on  the  five  circumstances  which  are  always 


FIXTURES.  343 

considered  most  material  in  questions  of  this  sort, 
namely, 

1st.  That  the  article  was  one  of  domestic  con- 
venience. 

2ndly.  That  it  was  erected  by  the  tenant. 

3rdly.  That  it  could  be  moved  entire. 

4thly.  That  it  was  but  slightly  fixed ;  and 

5thly.  That  the  question  was  between  landlord  and 
tenant. 

Before  quitting  this  part  of  the  subject,  I  will  recom- 
mend you  to  peruse  the  judgment  in  Bucldand  v.  But- 
terfield,  2  Bro.  &  Bing.  54,  (6  E.  C.  L.  R.  35,),  which 
has  always  been  considered  the  chief  decision  on  the 
subject  of  domestic  fixtures.  In  that  case  the  p^j^^^w-, 
*tenant  sought  to  remove  a  conservatory,  but  '-  ^ 
was  not  permitted  to  do  so.  The  judgment  of  the  Lord 
Chief  Justice  Dallas  will  be  found  to  contain  a  sum- 
mary of  almost  all  that  can  be  said  regarding  the  remo- 
val of  this  class  of  fixtures.^* 

^^  In  addition  to  the  articles  mentioned  in  the  text,  the  following 
things  may  be  considered  to  fall  within  the  definition  of  tenant's  fix- 
tures. Hangings,  tapestry,  pier  glasses,  chimney  glasses,  and  iron 
backs  to  chimneys,  Beck  v.  Rebow,  1  P.  Wms.  94.  Harvey  v.  Har- 
vey, 2  Str.  1141 ;  beds  fastened  with  ropes  or  nails  to  the  ceiling, 
Noy's  Max.  167  (9th  Edit.),  Keilw.  88  ;  stoves,  mash-tubs,  locks, 
bolts,  and  blinds,  Colegrave  v.  Dias  Santos,  2  B.  &  C.  76,  (9  E.  C. 
L.  R.  42,)  ;  cupboards  standing  on  the  ground  and  supported  by  hold- 
fasts, R.  V.  Inhab.  of  St.  Dunstan,  4  B.  &  C.  686,  (10  E.  C.  L.  R. 
758,)  ;  coflFee  mills  and  malt  mills,  R.  v.  Inhab.  of  Londonthorpe,  6 
T.  R.  377;  iron  ovens,  clock  cases,  4  Burn's  Eccl.  L.  411  (9th  Edit.) 
carpets  attached  to  the  floor  by  nails  for  the  purpose  of  keeping  them 
stretched  out,  curtains,  pictures  and  other  like  matters  of  an  orna- 
mental nature  which  are  slightly  attached  to  the  walls  of  the  dwell- 
ing-house, as  furniture.  See  the  judgment  in  Hellawell  v.  Eastwood, 
6  Exch.  c513.  As  to  the  distinction  between  what  arc  called  land- 
lord's  fixtures  and  tenant' s  fixtures,  see  the  judgments  in  Elliott  v. 


344  LANDLORD    AND    TENANT. 

Next,  with  regard  to  fixtures  erected  by  the  tenant 
for  the  purpose  of  carrying  on  a  trade — these  have 
much  greater  privileges  than  ornamental  fixtures,  (a), 
and  cases  frequently  occur  in  which,  to  favor  com- 
merce, a  tenant  is  allowed  to  take  away  fixtures  erected 
for  this  purpose,  which  he  would  certainly  not  be 
allowed  to  remove,  if  they  were  put  up  merely  for  the 

purposes   *of    ornament    or    domestic  conve- 
r  2681 
'-         -'   nience.     Thus,  in  the  case  I  have  just  cited, 

Biichland  v.  Butterjield,  the  tenant  was  not  allowed  to 

take  away  a  conservatory  which  had  been  added  to  the 

premises  for  ornament,  and  for  the  pleasure  of  the 

family;  and  yet  in  Penton  v.  Eohmi,  2  East,  90,  Lord 

Kenyon  expressed  a  clear  opinion  that  a  nurseryman 

who  is  forced  to  erect  conservatories,  in  order  to  carry 

on  his  trade,  would  be  permitted,  at  the  expiration  of 

his  term,  to  remove  them.     "  Shall  it  be  said,"  said  his 

lordship,  in  that  case,  "  that  the  great  gardeners  and 

Bishop,  24  L.  J.,  Esch.  33.  Fixtures  -which  a  tenant  may  sever 
from  the  freehold  and  take  away  during  the  term,  such  as  kitchen 
ranges,  stoves,  coppers,  and  grates,  are  not  therefore  liable  to  be  dis- 
trained for  rent.  Darby  v.  Harris,  1  Q.  B.  895,  (41  E.  C  L.  R. 
828,).  The  ordinary  rights  of  the  tenant  as  to  the  removal  of  fix- 
tures may  of  course  be  varied  by  the  express  contract  entered  into 
between  him  and  the  landlord.     See  post,  p.  275. 


(a)  The  doctrine  that  property  fixed  to  the  premises  by  the 
tenant  for  manufacturing  purposes,  is  his,  is  fully  recognized  in  the 
United  States.  Raymond  v.  White,  7  Cow.  319 ;  White  v.  Arndt, 
1  Wharton,  91 ;  Holmes  v.  Tremper,  20  Johns.  29 ;  Vanness  v.  Pack- 
ard, 2  Peters,  137 ;  Lemar  v.  Miles,  4  Watts.  330  ;  Taylor  v.  Town- 
send,  8  Mass.  411  ;  Washburn  v.  Sproat,  16  Mass.  449;  Whiting 
V.  Brastow,  4  Pick.  310;  Cook  v.  Champlain  Transportation  Co., 
1  Denio,  91;  Voorhis  v.  Freeman,  2  Watts  &  Sergt.  116;  Tyler  v. 
Pennock,  2  Watts  &  Sergt.  390 ;  Pemberton  v.  King,  2  Dev.  376 ; 
Godard   v.  Gould,  14  Barb.  662. 


FIXTURES.  345 

nurserymen  in  the  neighborhood  of  this  metropolis, 
who  expend  thousands  of  pounds  in  the  erection  of 
greenhouses  and  hothouses,  &c.,  are  obliged  to  leave 
all  these  things  upon  the  premises,  when  it  is  noto- 
rious that  they  are  even  permitted  to  remove  trees,  or 
such  as  are  likely  to  become  such,  by  the  thousand,  in 
the  necessary  course  of  their  trade  ]  If  it  were 
otherwise,  the  very  object  of  their  holding  would  be 
defeated." 

Here  is,  you  see,  a  case  in  which  Lord  Kenyon 
expressly  asserts  a  species  of  building  to  be  remov- 
able, when  set  up  for  the  purposes  of  trade,  which  the 
Court  of  Common  Pleas,  in  BucMand  v.  Butterjield^ 
had  decided  not  to  be  removable  when  set  up  by  an 
ordinary  tenant  for  purposes  of  ornament  and  enjoy- 
ment. And,  indeed,  the  other  case  put  by  Lord  Ken- 
yon, of  the  trees,  illustrates  the  same  proposition ;  for, 
on  the  one  hand,  it  seems  clear  that  a  nurseryman  may 

remove  *trees  and  shrubs  planted  by  him  in     ^ 

.  .  [269"! 

his  business,  and  constituting,  as  it  were,  part   ^         ^ 

of  his  stock  in  trade ;(«)  and,  on  the  other  hand,  it  has 
been  decided  that  a  private  individual  cannot  remove 
the  slightest  shrubs,  not  even  a  box  border.  Em]json 
V.  Soden,  4  B.  &  Ad.  655,  (24  E.  C.  L.  R.  288).  In 
that  case  Mr.  Justice  Littledale  went  so  far  as  to  say 
that  the  tenant  would  not  be  justified  in  carrying  away 
even  flowers. 

For  other  examples  of  the  relaxation  of  the  strict 
rule  in  favor  of  trade  fixtures,  you  may  consult  Law- 
ton  V.  Salmon,  1  H.  Bl.  259,  note ;  Dean  v.  AUalley,  3 
Esp.  11 ;   Trajijyes  v.  Earter,  4  Tyrwh.  603  [S.  C.  2  Cr. 

(o)  It  was  held  in  Miller  v.  Baker,  1  Met.  27,  that  shrubs  and 
trees  on  lands  leased  for  a  nursery,  are  personal  chattels,  as  between 
landlord  and  tenant  and  his  assigns,  and  may  be  removed. 


346  LANDLORD    AND    TENANT. 

&  M.  153;]*  Earl  of  Mcms/wld  v.  Blaclcburne^  6  Bing. 

r*27oi  -^-  ^'  '^^^'  ^^^  ^-  ^'  ^'  ^'  ^^^^•''   *^'^'^' 

indeed,  it  is  quite  obvious  that,  at  a  period 
like  the  present,  at  which  the  use  of  machinery  is 
becoming  so  universal,  and  at  which  so  much  capital 
is  consequently  invested  in  property  of  that  sort,  en- 
couragement must,  upon  principles  of  public  policy, 
be  given  to  the  tenant  to  erect  fixtui'es  of  that  kind, 

■•^  See  the  notes  to  Elwes  v.  Mawe,  2  Smith's  L.  C.  114;  the 
judgment  of  the  Court  of  Exchequer  in  Hellawell  v.  Eastwood,  6 
Esch.  295 ;  Heap  v.  Barton,  12  C.  B.  274,  (74  E.  C.  L.  B.  274,) 
and  the  cases  cited  ante,  p.  142,  note  2^,  see  also  Fisher  v.  Dixon,  12 
CI.  &  F.  312  a  case  in  which  no  question  was  in  fact  raised  as  to 
trade  fixtures,  but  in  which  some  of  the  earlier  decisions  on  this  sub- 
ject are  examined  and  explained.  The  general  result  of  the  cases 
relating  to  it,  and  the  principle  upon  which  they  are  founded,  is  thus 
stated  in  Amos  and  Ferard  on  Fixt.  82.  "  The  inference  to  be 
drawn  from  the  cases  is  that  a  tenant  has  an  indisputable  right  to  re- 
move fixtures,  which  he  has  annexed  to  the  demised  premises  for  the 
purpose  of  carrying  on  his  trade;  and  that  the  benefit  of  the  puhlic 
may  be  regarded  as  the  principal  object  of  the  law  in  bestowing  this 
indulgence.  The  reason  which  induced  the  Courts  to  release  the 
strictness  of  the  old  rules  of  law,  and  to  admit  an  innovation  in  this 
particular  instance  was,  that  the  commercial  interests  of  the  country 
might  be  advanced  by  the  encouragement  given  to  tenants  to  employ 
their  capital  in  making  improvements  for  carrying  on  trade,  with  the 
certainty  of  having  the  benefit  of  their  expenditure  secured  to  them 
at  the  end  of  their  terms."  The  principal  circumstances  to  consider 
in  inquiring  whether  any  particular  article  is  removable  as  a  trade  fix- 
ture, are  the  nature  of  its  annexation  to  the  freehold  and  the  extent 
of  injury  which  would  be  caused  by  its  removal ;  the  character  of  its 
construction ;  the  intention  with  which  it  was  put  up ;  its  compara- 
tive value  to  the  respective  claimants;  and  the  existence  or  otherwise 
of  any  custom  relating  to  the  matter.  See  Amos  and  Ferard  on 
Fixt.,  Part  I.,  c.  ii.,  s.  1.  As  to  the  right  of  tenants  of  farms  to  re- 
move buildings  and  machinery  erected  for  the  purposes  of  trade  and 
agriculture,  under  the  14  &  15  Yic.  c.  25,  s.  3,  see  the  next  note. 


FIXTURES.  347 

by  allowing  him  to  remove  them  at  the  expiration  of 
his  interest.  And,  accordingly,  we  may,  I  think, 
expect  to  see  the  exception  in  favor  of  trade  fixtm-es 
every  day  extended. 

With  regard  to  agricultural  fixtures — it  has  been 
much  questioned  whether  they  fall  within  the  excep- 
tion which  has  been  made  in  favor  of  fixtures  erected 
for  the  purposes  of  trade.  Lord  Ellenborough,  in  his 
celebrated  judgment  in  Ehoes  v.  Maive,  3  East,  38, 
expresses  himself  against  extending  the  exception  to 
them.  However,  since  that  time  it  has  been  thought 
by  many  that  his  lordship's  view  may  have  been  in 
that  respect  too  narrow,  and  that  as  farming  is  now 
carried  on  so  much  by  the  aid  of  machinery,  and  at 
such  an  outlay  of  capital,  the  farmer  ought  not  to 
be  deprived  of  the  encouragement  which  is  extended 
to  the  tradesman  and  the  manfacturer.  Mr.  Amos, 
in  particular,  has  argued  strongly  to  this  effect,  and 
*seems  by  no  means  clear  that  Lord  Ellen-  r*9^i-| 
borough's  opinion  on  that  point  would  now 
be  upheld,  (a)'' 

1^  See  Amos  and  Ferard  on  Fixt.,  Part  I.,  c.  ii.,  s.  2.  The  result  of 
the  cases  on  this  subject  is  thus  stated  in  the  notes  to  Elwes  v.  Mawe, 
2  Smith's  L.  C.  117.  "Upon  the  whole,  the  extent  of  the  tenant's 
right  with  respect  to  agricultural  fixtures,  does  not  seem,  even  as  yet, 
quite  defined.  It  is  clear  that  it  does  not  go  beyond,  and,  unless  the 
opinion  expressed  by  Lord  Ellenborough  in  Elwes  v.  Mawe  be  modi- 
fied, it  falls  considerably  short  of  his  rights  with  respect  to  trading 
fixtures."  It  has  been  held  that  a  tenant  is  entitled  at  the  expiration 
of  his  term  to  remove  a  wooden  barn  which  he  has  erected  on  a  foun- 
dation of  brick  and  stone,  the  foundation  being  let  into  the  ground, 


(a)  Buildings  erected  by  the  tenant  for  agricultural  purposes,  were 
held  in  the  following  cases  to  be  on  the  same  footing  as  those  erected 
for  purposes  of  trade.  Dubois  v.  Kelly,  10  Barb.  Sup.  Ct.  496; 
Pemberton  v.  King,  2  Dev.  376;  Miller  v.  Baker,  1  Met.  27; 
Holmes  v.  Tremper,  20  Johns,  29;  Leland  v.  Gassltt,  17  Ycrm.403. 


348  LANDLORD    AND    TENANT. 

r*2721        *Now,  having  pointed  out  what  fixtures  are 
removable,    it  remains  only  to   point  out  at 

but  the  barn  restir^  upon  it  by  its  weigbt  alone,  and  being,  therefore, 
removable  without  injury  to  the  foundation.  Wansbrough  v.  Maton, 
4  A.  &  E.  884,  (31  E.  C.  L.  R.  386,).  In  Wiltshear  v.  Cottrell,  1 
E.  &  B.  674,  (72  E.  C.  L.  R.  674,)  a  question  arose  as  to  whether 
certain  machinery  and  other  articles  erected  on  a  farm  passed  under  a 
conveyance  of  the  land  and  of  all  fixtures  to  the  farm  helonging  ;  and 
it  was  held  that  a  granary  consisting  of  a  wooden  shed  tiled  over, 
and  resting  by  its  mere  weight  upon  a  wooden  frame  which  rested 
upon  staddles  built  into  the  land  was  a  mere  chattel,  and  could  not 
be  considered  as  either  part  of  the  land,  or  as  affixed  to  the  freehold. 
But  it  was  held  that  some  stone  pillars  mortared  into  a  foundation  of 
brick  and  mortar  which  was  let  into  the  earth,  and  having  on  their 
tops  stone  caps  mortared  to  them  for  the  purpose  of  supporting  ricks, 
passed  under  the  deed.  And  the  same  rule  was  applied  to  a  threshing 
machine  which  was  placed  inside  one  of  the  barns,  and  fixed  by  screws 
and  bolts  to  posts  which  were  let  into  the  earth,  and  could  not  be  got 
out  without  disturbing  the  soil.  In  Huntley  v.  Russell,  13  Q.  B. 
572,  (66  E.  C.  L.  R.  572,)  it  was  held  that  a  cottage  or  farm  building 
placed  upon  the  soil  of  a  rectory  but  not  fixed  into  the  ground,  and 
intended  at  the  time  of  the  erection  to  be  removable  at  will,  might  be 
removed  by  the  incumbent  without  incurring  any  liability  to  his  suc- 
cessor for  waste  or  dilapidation ;  although  the  posts  on  which  it 
rested  had,  by  the  weight  of  the  building,  become  imbedded  in  the 
ground  to  the  depth  of  a  foot.  Since  this  Lecture  was  written,  the 
relative  rights  of  landlords  and  tenants  in  these  respects  have  been 
altered  by  statute,  where  tenants  erect  farm  buildings  or  machinery 
for  agricultural  purposes,  or  for  the  purposes  of  trade  a?if?  agriculture, 
with  the  consent  in  ivrithig  of  the  landlords.  It  is  enacted  by  the  14 
&  15  A^ic.  c.  25,  s.  3  (passed  on  the  24th  of  July,  1851),  "  that  if 
any  tenant  of  a  farm  or  lands  shall  after  the  passing  "of  this  act,  with 
the  consent  in  writing  of  the  landlord  for  the  time  being,  at  his  own 
cost  and  expense,  erect  any  farm  building,  either  detached  or  other- 
wise, or  put  up  any  other  building,  engine,  or  machinery,  either  for 
agricultural  purposes,  or  for  the  purposes  of  trade  and  agriculture 
(which  shall  not  have  been  erected  or  put  up  in  pursuance  of  some 
obligation  in  that  behalf),  then  all  such  buildings,  engines,  and  ma- 


FIXTURES.  d4'J 

what  time  the  tenant  must  exercise  his  privilege  of 
doing  so.  And  it  is  well  settled  that  he  must  do  so 
either  during  his  term,  or  at  all  events  before  he  has 
quitted  the  premises  after  the  expiration  of  his  term. 
If,  at  the  end  of  his  term,  he  leave  the  premises,  and 
leave  the  fixtures  on  them,  he  is  taken  to  have  ^^«^ 
abandoned  his  right  to  remove  them,  *and  '-  -' 
they  become  his  landlord's  property.  See  Lyde  v. 
Russell,  1  B.  &  Ad.  394,  (20  E.  C.  L.  R.  532,).(a)" 

chinery,  shall  be  the  property  of  the  tenant,  and  shall  be  removable 
by  him,  notwithstanding  the  same  may  consist  of  separate  buildings, 
or  that  the  same  or  any  part  thereof  may  be  built  in  or  permanently 
fixed  to  the  soil,  so  as  the  tenant  making  any  such  removal  do  not  in 
any  wise  injure  the  land  or  buildings  belonging  to  the  landlord,  or 
otherwise  do  put  the  same  in  like  plight  and  condition,  or  as  good 
plight  and  condition,  as  the  same  were  in  before  the  erection  of  any- 
thing so  removed  :  provided,  nevertheless,  that  no  tenant  shall,  under 
the  provision  last  aforesaid,  be  entitled  to  remove  any  such  matter  or 
thing  as  aforesaid,  without  first  giving  to  the  landlord  or  his  agent 
one  month's  previous  notice  in  writing  of  his  intention  so  to  do;  and, 
thereupon,  it  shall  be  lawful  for  the  landlord,  or  his  agent  on  his  au- 
thority, to  elect  to  purchase  the  matters  and  things  so  proposed  to  be 
removed,  or  any  of  them,  and  the  right  to  remove  the  same  shall 
thereby  cease,  and  the  same  shall  belong  to  the  landlord ;  and  the 
value  thereof  shall  be  ascertained  and  determined  by  two  referees, 
one  to  be  chosen  by  each  party,  or  by  an  umpire  to  be  named  by  such 
referees,  and  shall  be  paid  or  allowed  in  account  by  the  landlord,  who 
shall  have  so  elected  to  purchase  the  same."  This  act  does  not  ex- 
tend to  Scotland,  see  s.  5. 

"  See  also  the  judgment  of  Lord  Holt  in  Poole's  case,  1  Salk. 
368 ;  Penton  v.  Robart,  2  East,  88 ;  Fitzherbert  v.  Shaw,  1  H.  Bl. 
258  J  the  judgment  in  Hallen  v.  Runder,  1  Cr.  M.  &  R.  275;*  the 

(a)  The  law,  as  stated  in  the  text,  is  recognized  in  the  following 
cases  :  White  v.  Arndt,  1  Wharton,  91 ;  Pemberton  v.  King,  2  Dev. 
376;  Shepard  v.  Spaulding,  4  Met.  416;  Gaffield  v.  Hapgood,  17 
Pick.  192 ;  Stockwell  v.  Marks,  5  Shep.  455 ;  Preston  v.  Rriggs,  16 
Verm.  124;  Beers  v.  St.  John,  16  Conn.  322;   State  v.  Elliott,  11 


350  LANDLORD    AND    TENANT. 

r*  ^-  <  -1        *Thus  far  I  have  considered  the  rules  which 
regulate   the  removal   of  fixtures,   simply  as 

judgment  of  Baron  Parke  in  Minshall  v.  Lloyd,  2  M.  &  W.  459  ;* 
and  the  notes  to  Elwes  v.  Mawe,  2  Smith's  L.  C.  115.  In  Mackin- 
tosh V.  Trotter,  3  M.  &  W.  184,*  a  question  arose  as  to  whether  a 
lessee  could,  during  his  term,  maintain  trover  for  fixtures  attached  to 
the  freehold,  and  which  had  been  sold  by  the  defendants.  It  was 
held  that  he  could  not,  and  Baron  Parke  said,  in  delivering  judg- 
ment :  <<The  principle  of  law  is,  that  whatsoever  is  planted  in  the  soil 
belongs  to  the  soil  ....  the  tenant  has  the  right  to  remove  fixtures 
of  this  nature  during  his  term,  or  during  ichat  may,  for  thisjmrposej 
he  considered  as  an  excrescence  on  the  term  ;  but  they  are  not  goods 
and  chattels  at  all,  but  parcel  of  the  freehold,  and,  as  such,  not  re- 
coverable in  trover."  The  latter  part  of  the  rule  thus  laid  down  is 
more  fully  explained  in  the  later  case  of  Weeton  v.  Woodcock,  7  M. 
&  W.  14.*  "  The  rule,"  said  the  Court,  in  this  case,  "  to  be  collected 
from  the  several  cases  decided  on  this  subject,  seems  to  be  this,  that 
the  tenant's  right  to  remove  fixtures  continues  during  his  original 
term,  cmd  during  such  furtlier  period  as  he  holds  the  premises  under  a 
right  still  to  consider  himself  as  tenant."  And  in  Rofiey  v.  Henderson, 
17  Q.  B.  574,  (79  E.  C.  L.  K.  574,)  similar  expressions  were  used  by 

N.  H.  540.  See  Holmes  v.  Tremper,  20  Johns.  29,  where  it  was 
held  that  a  cider  mill  might  be  removed  after  the  term,  and  Law- 
rence V.  Kemp,  1  Duer,  363,  where  the  same  doctrine  was  applied  to 
gas  fixtures.  In  Holmes  v.  Tremper,  it  was  held,  (and  the  same  thing 
was  said  in  Pemberton  v.  King,)  that  fixtures  which  the  tenant  might 
remove  were  his,  and  that  his  right  of  property  was  not  lost  by 
failing  to  remove  them  during  the  term,  or  before  he  quitted  posses- 
sion ;  and  if  he  afterwards  entered  and  took  them,  he  only  took  his 
own,  which  the  landlord  could  not  retake,  though  he  might  bring  aa 
action  of  trespass.  See  contra  State  v.  Elliott,  11  N.  H.  540, 
Preston  v.  Briggs,  16  Verm.,  124.  Beers  v.  St.  John,  16  Conn., 
522,  and  Stockwell  v.  Marks,  5  Shep.  455.  See  Judge  Hare's  note 
to  Elwes  V.  Mawe,  in  the  fifth  American  edition  of  Smith's  Leading 
Cases.  In  Lyde  v.  Russel,  1  B.  &  Ad.  394  (20  E.  C  L.  R.  532), 
it  was  held  with  regard  to  bells,  bell-pulls,  cranks,  &c.,  which 
had  been  put  in  by  the  tenant,  that  if  not  removed  during  the 
term  they  became  the  property  of  the  landlord. 


FIXTURES.  351 

they  subsist  in  the  absence  of  agreement;  but  as  I 
have  frequently  had  occasion  to  say,  during  this  Lee- 
Mr.  Justice  Patteson.  ''  The  general  principle,"  said  that  learned  judge, 
"  is,  that  where  the  articles  are  of  such  a  kind  as  to  become  fixed  to  the 
freehold,  the  tenant,  if  they  are  tenant's  fixtures,  may  remove  them 
during  the  term,  or  during  such  time  as  he  vnay  hold  possession  after 
the  term  in  the  capacity  of  a  tenant."  In  the  last-mentioned  case, 
the  facts  appeared  to  be,  that  an  outgoing  tenant  of  a  house  was 
possessed  of  shelves,  stoves,  and  other  articles  of  this  description, 
which  were  his  own  property,  but  which  had  been  afl&xed  to  the  free- 
hold. When  he  was  about  to  leave  the  premises,  he  requested  his 
landlord  to  purchase  these  fixtures,  or  to  allow  them  to  remain,  so 
that  they  might  be  purchased  by  the  incoming  tenant,  and  stated, 
that  if  they  were  not  bought  he  would  then  remove  them.  The  land- 
lord wrote,  in  reply,  refusing  to  buy  the  fixtures,  but  stating  that  he 
had  no  objection  to  the  outgoing  tenant  leaving  them  on  the  premises 
and  making  the  best  terms  he  could  with  the  incoming  tenant.  The 
fixtures  remained  unsevered  from  the  freehold,  the  landlord  let  the 
premises  again,  and  the  incoming  tenant  refused  to  purchase  the 
articles  in  question.  After  the  latter  had  been  in  possession  two 
months,  the  outgoing  tenant  demanded  liberty  to  enter  and  remove 
the  fixtures,  and  on  this  permission  being  refused,  he  sued  the  incom- 
ing tenant  in  an  action  on  the  case  for  the  hindrance,  and  in  trover 
for  the  fixtures.  It  was  held,  that  the  action  would  not  lie,  for  if  the 
landlord's  letter  amounted  to  a  license  to  the  outgoing  tenant  to  take 
away  the  fixtures,  it  could  not,  not  being  under  seal,  operate  as  a  valid 
grant  of  such  a  right  as  against  the  new  tenant,  who  was  no  party  to 
the  license,  and  trover  would  not  lie  for  the  articles  claimed,  so  long 
as  they  were  unsevered  from  the  freehold.  The  law  with  respect  to 
the  period  at  which  the  tenant  must  exercise  his  right  to  remove,  can- 
not be  considered  to  be  altogether  settled.  See  the  notes  to  Elwes  v. 
Mawe,  2  Smith's  L.  C.  118,  where  it  is  doubted  whether  a  tenant, 
whose  interest  is  uncertain  in  point  of  duration,  has  not  a  reasonable 
time  after  the  expiration  of  his  tenancy  within  which  he  may  remove 
his  fixtures.  See  also  Heap  v.  Barton,  12  C.  B.  274,  (74  E.  C.  L. 
R.  274,)  where  no  question,  in  fact,  arose  upon  this  point,  the  right 
to  remove  at  all  having  been  taken  away  by  an  agreement  between 
the  parties  j  but  the  Lord  Chief  Justice  Jervis  said,  speaking  of  the 


352  LANDLORD    AND    TENANT. 

tni'c,  expressum  cessare  facit  iacihmi.  And,  where  there 
is  any  express  stipulation  between  the  landlord  and 
tenant  regarding  the  fixtures,  that,  as  a  matter  of 
r*97--|  course,  overrules  and  supersedes  the  *rules  of 
law  which  I  have  just  stated.  See  NaijJor  v. 
Coll  Inge,  1  Taunt.  18;  Pennj  v.  Bwicn,  2  Stark.  403, 
(3  E.  C.  L.  R.  463 ;)  Thresher  v.  East  London  Water- 
iDorhs  Company,  2  B.  &'C.  608.  (9  E.  C.  L.  R.  267.y» 
And  custom,  which,  we  have  already  seen,  sometimes 
engrafts  terms  upon  leases  as  to  which  the  documents 
themselves  are  silent,  might  have  the  same  eifect  in 
regulating  the  relative  rights  of  the  parties  with 
regard  to  fixtures.  See  Trappes  v.  Harter,  4  Tyrwh. 
603,  [S.  C.  2  Cr.  &  M.  153*] ;  Davis  v.  Jones,  2  B.  i& 
A.  165 ;  Watherell  v.  Hoicells,  1  Camp,  227 ;  Culling 
V.  Tifffnal,  Bull,  N.  P.  34.^^ 

law  on  this  subject :  "The  Courts  seem  to  have  taken  three  separate 
views  of  the  rule ;  first,  that  fixtures  go,  at  the  expiration  of  the 
term,  to  the  landlord,  unless  the  tenant  has,  during  the  term,  exercised 
his  right  to  remove  them  ;  secondly,  as  in  Penton  v.  Robart,  that  the 
tenant  may  remove  the  fixtures,  notwithstanding  the  term  has  expired, 
if  he  remains  in  possession  of  the  premises ;  thirdly,  that  his  right  to 
remove  fixtures  after  his  term  has  expired,  is  subject  to  this  further 
qualification,  viz.,  that  the  tenant  continues  to  hold  the  premises 
under  a  right  still  to  consider  himself  as  tenant."  And  see  Amos 
and  Ferard  on  Fixt.,  Part  I.,  c.  ii.,  s.  5. 

1^  See  also  Amos  and  Ferard  on  Fixt.  108  ;  and  as  to  the  construction 
of  contracts  affecting  the  right  to  remove  fixtures,  Rex  v.  Topping, 
M'Cl.  &  Y.  544  f  Martyr  v.  Bradley,  9  Bing.  24 ;  (23  E.  C.  L.  R.  469 ;) 
The  Earl  of  Mansfield  v.  Blackburne,  6  Bing.  N.  C.  426,  (37  E.  C.  L. 
R.  442,) ;  West  v.  Blakeway,  2  M.^&  Gr.  729,  (40  E.  C.  L.  R.  828,); 
Foley  V.  Addenbrooke,  13  M.  &  W.  174;*  Wiltshear  i;.  Cottrell,  1  E. 
&  B.  674,  (72  E.  C.  L.  R.  674,) ;  and  Elliott  v.  Bishop,  24  L.  J.  Exc.  33. 

19  See  also  Wansbrough  v.  Maton,  4  A.  &  E.  884,  (31  E.  C  L. 
R.  386,).  Any  customary  right  in  this  respect  will  be  destroyed  if 
the  parties  enter  into  an  express  contract  inconsistent  with  it.     See 


FIXTURES.  353 

In  practice,  you  will  generally  -find  that  fixtures  are, 
either  by  express  agreement,  or  even  where  there  is 
no  express  agreement  on  the  subject,  by  arrangement, 
valued  at  the  end  of  the  term  between  the  outo-oing; 
and  incoming  tenant — the  former  receiving,  and  the 
latter  paying,  the  value  of  the  removable  fixtures  left 
on  the  premises ;  but  though,  in  practice,  this  is  so, 
and  a  mere  bystander  would  think  that  the  whole 
transaction  was  between  the  outgoing  and  incoming 
tenant,  *yet  in  point  of  fact,  and  in  legal  r#9^£;-| 
effect,  it  is  between  the  outgoing  tenant  and 
the  landlord,  for  the  former  is  entitled  to  have  nothing 
valued  which  he  could  not,  either  by  virtue  of  the 
general  rules  of  law  which  I  have  stated,  or  by  e?:press 
or  implied  agreement,  remove,  as  against  his  landlord ; 
so  that  the  real  question  is,  what  are  their  mutual 
rights  with  regard  to  the  fixtures.^'^ 

Wiltshear  v.  Cottrell,  1  E.  &  B.  674,  (72  E.  C.  L.  K.  674,);  and  the 
cases  cited,  ante,  p.  258,  note  ^. 

^  See  Faviell  v.  Gaskoin,  7  Exch.  273 ;  and  ante,  p.  261,  note. 


23 


354 


LANDLORD    AND    TENANT. 


[*2T7] 


*LECTUIIE    X. 


Points  relating  to  a  change 
OF  parties  to  the  demise.  .  277 
Contracts   not  assignable...  278 

Exceptions 278 

Estates  assignable 279 

Assignment 279 

By  act  of  parties 279 

How  efiPected 279 

By  Landlord 280 

Attornment 280 

Notice  to  Tenant 281 

By  Tenant 281 

Effect  of  Statute  of  Frauds, 

and  of  the  8&9  Vice.  106,281 
Consequences  of  Assignment.  282 

At  common  Law 282 

Since  the  32  Hen.  8,  c.  34..  284 

Construction  of  Statute 285 

Covenants  running  with  Land 
and  with  Eeversion 286 


Implied  Covenants 287 

Express  Covenants 288 

Effect  of    "  Assigns  "   being 

mentioned 289 

Position  of  Assignor  and  As- 
signee   292 

Lessee  still  liable  on  express 

Covenants 293 

Otherwise  with    respect    to 

Assignee 294 

Assignment  of  part  of  land..  295 

Of  part  of  Eeversion 296 

Of  Eeversion  in  part  of  Land.  296 
Conditions  not  apportionable.  297 

By  Act  of  Law 297 

By  death  of  Lessor 297 

By  death  of  Lessee 299 

Liability  of  Executor 300 

By  Bankruptcy 302 

By  Insolvency 305 


I  HATE  now  arrived  at  the  last  of  the  four  heads 
into  which  I  originally  divided  this  snbject.  You  will 
probably  remember,  that  after  describing  the  general 
nature  of  the  relation  between  landlord  and  tenant, 
the  different  sorts  of  tenancy,  and  their  distinguishing 
peculiarities,  I  divided  the  entire  subject  into  four 
heads. 

r*9'*'Q-i       *The  first  comprising  points  which  occur  at 
the  creation  of  the  tenancy. 

The  second  those  which  occur  during  its  continuance. 

The  third  those  which  occur  at  its  termination. 

The  foiuth  those  which  occur  upon  a  cluuige  of  tlie 


CHANGE   OF    PARTIES   TO    THE    DEMISE.      355 

original  parties  to  the  relation  of  landlord  and  tenant. 
It  is  to  this  fourth  point  that  my  observations  will  be 
this  evening  directed. 

According  to  the  general  rule  of  the  law  of  England, 
a  contract,  or  cliose  in  action  as  we  technically  denomi- 
nate it,  is  not  assignable  so  as  to  invest  the  assignee 
with  any  rights  at  law.^  There  are,  it  is  true,  certain 
excepted  cases.  Bills,  notes,  and  other  negotiable 
instruments  are  assignable  by  the  law  merchant,  or 
by  Acts  of  Parliament  passed  for  the  purpose ;  and 
there  are  one  or  two  other  exceptions  of  less  import- 
ance ;  but  the  general  rule  is,  that  at  law  a  contract 
cannot  be  assigned.'^ 

The  Courts  of  Equity  indeed  will  enforce  r#9^q-i 
such  *an  assignment  if  it  be  made  on  good 
consideration ;  and  though  they  cannot  alter  the  course 
of  things  at  law,  will  practically  carry  their  decree 
into  effect  by  treating  the  assignor  of  the  contract  as 
a  trustee  of  it  for  the  assignee,  and  forcing  him  to 
permit  the  latter  to  sue  upon  it  in  his  name.^     But 

^  This  rule  of  the  common  law,  which  seems  to  have  been  confiDed 
at  first  to  contracts  relating  to  landed  property,  was  adopted  in  order 
to  prevent  litigation,  and  to  protect  the  poorer  classes  from  being  in- 
jured by  the  transfer  of  fictitious  or  doubtful  rights  of  action  to  great 
persons  in  the  state.  See  Co.  Litt.  214:  a;  2  Roll.  Ab.  45,  46, 
Graunts  (F)  (G). 

2  A  statutory  exception  to  this  general  rule  was  created  by  the  51 
Geo.  3,  c.  64,  which  made  India  bonds  assignable,  so  that  the  property 
in  the  bonds  became  absolutely  vested,  both  at  law  or  in  equity,  in 
the  assignee.  Another  of  the  exceptions  referred  to  in  the  text,  ex- 
isted in  the  case  of  bail  bonds  given  to  the  sheriff,  on  the  arrest  of  a 
defendant  in  an  action,  which  were  assignable  by  the  sheriff  to  the 
plaintiff,  by  force  of  the  4  Anne,  c.  16,  s.  20.    See  also,  ante,  p.  185. 

^  See  the  cases  collected  in  Chitty's  Equity  Index.  Chose  in 
Action. 


O06  LANDLORD    AND    TENANT. 

though  a  contract  is  thus,  in  effect,  assignable,  yet  in 
form  and  in  contemplation,  of  law  it  is  not  so. 

But  though  a  lease  is  necessarily  a  contract^  yet  it  is 
a  contract  which  creates  an  estate ;  and  by  the  law  of 
England  an  estate  is  assignable,  although  a  contract  is 
not  so.  And  the  landlord,  therefore,  may  assign  over 
his  estate  in  his  reversion — the  tenant  his  estate  in 
his  term ;  and  thus  the  parties  to  the  relation  may  be 
altered  either  by  a  change  of  landlord,  or  a  change  of 
tenant,  or  a  change  of  both  landlord  and  tenant.  And 
it  is  the  consequiences  of  such  a  change  that  I  am  now 
about  to  consider. 

Now  it  is  obvious  that  such  an  assignment  may  be 
brought  about  in  either  of  two  ways : 

1st.  By  the  act  of  the  parties. 

Or  2ndly,  By  the  act  of  the  law. 

Let  us  first  suppose  it  to  be  brought  about  by  the 
act  of  the  parties.  And  first  let  us  ask  lioiv  an  assign- 
Qnent  hy  act  of  the  jparties  is  effected  ? 

/Secondly,  icJiat  are  its  consequences  when  effected  ? 

Now  an  assignment  made  by  the  landlord  must  be 
made  by  deed,  for  his  reversion  is  an  incorporeal 
r*9^m  *li6reditament ;  and  every  incorporeal  heredi- 
tament lies,  as  we  say,  in  grant,  and  can  be 
conveyed  by  deed  only:  and  this  was  so  at  common 
law* — with  this  addition,  that  in  order  to  perfect  the 
assignment  of  the  landlord's  reversion,  it  was  neces- 
sary that  the  tenant  in  possession  should  have  attorned 
to  the  assignee,  that  is  recognised  the  assignee's  Jtitle 
to  be  considered  his  landlord;  for  it  was  considered 
unreasonable  to  place  the  tenant  in  a  situation  of 
responsibihty  and  obligation  to  a  person  of  whose 
very  existence  he  might  be  ignorant,  since  the  assign- 

4  See  Beely  v.  Purry,  3  Lev.  154. 


ASSIGNMENT    BY    ACT    OF    PARTIES.      357 

ment  might  be  executed  behind  his  back,  and  alto- 
gether without  his  knowledge.  And,  therefore,  the 
law  before  it  would  place  him  in  that  situation,  ren- 
dered it  necessary  that  he  should  have  attorned,  that  is, 
in  some  way  shown  that  he  knew  of  the  assignment, 
or  recognised  the  assignee  as  his  landlord.^ 

However,  when  an  estate  was  in  the  occupation  of 
a  great  many  tenants  it  was  troublesome  to  procure 
attornments  from  all  of  them ;  and  therefore  by  stat. 
4  Anne,  c.  16,  s.  9,  this  ceremony  of  attornment  was 
altogether  abolished,  and  an  assignment  by  the  land- 
lord is  now  perfectly  valid  without  it.  But  though 
attornment  was  thus  done  away  with,  the  interests  of 
the  tenant  were  not  disregarded,  for  by  the  ,same 
statute  (s.  10)  it  was  enacted,  that  the  tenant  should 
not  be  prejudiced  by  payment  of  any  rent  to  the  old 
landlord  before  *he  received  notice  of  the  |-^,^o-|-| 
change  of  interest;  so  that  the  effect  of  that 
statute  has  been  to  substitute  for  the  necessity  of  an 
attornment,  the  necessity  of  giving  notice  to  the 
tenant  before  he  can  be  sued  by  the  assignee  for  rent- 
arrear  Avhich  has  accrued  due  since  the  time  of  the 
assignment.  You  will  see  the  effect  of  this  statute 
discussed  in  Moss  v.  GaUimore,  Dougl.  279.'^  (a). 

*  See  as  to  attornment  at  common  law,  Co.  Litt.  309  b. 

^  See  also  the  notes  to  this  case,  1  Smith's  L.  C.  315,  and  the  judg- 
ment in  Doe  d.  Agar  v.  Brown,  2  E.  &  B.  331,  (75  E.  C.  L.  R.  331,). 
Since  this  statute,  when  a  mortgagor  conveys  his  estate  to  a  mort- 
gagee, the  tenants  of  the  former  become,  without  attornment,  the 
tenants  of  the  latter ;  and  if  he  gives  notice  to  them  of  the  mortgage, 

(«)  The  statute  of  Anne  has  been  generally  adopted  throughout 
the  United  States.  Farley  v.  Thompson,  15  Mass.  18  ;  Report  of 
the  Judges,  3  Binney,  625;  Burden  v.  Thayer,  3  Met.  78;  Baldwin 
V.  Walker,  21  Conn.  168 ;  Coker  v.  Pearsoll,  G  Ala.  542. 


358  LANDLORD    AND    TENANT. 

A^Tien  the  assignment  is  by  the  tenant  of  his  term, 
it  might  originally  have  been  made  by  mere  parol ;  but 
by  the  Statute  of  Frauds,  [29  Car.  2,  c.  3]  it  is  enacted 
that  all  assignments  of  leases  or  terms  for  years,  shall 
be  by  deed  or  note  in  ^yriting,  signed  by  the  party 
assigning,  or  his  agent  thereunto  lawfully  authorized 
r*909-i  by  ^\Titing.'  *[And  by  the  8  &  9  Vic.  c.  106, 
s.  3,  all  assignments  of  chattel  interests,  not 
being  copyhold,  in  any  tenements  or  hereditaments, 
made  after  the  1st  of  October,  1845,  are  void  at  laio, 
unless  made  by  deed.^] 

You  will  recollect,  that  by  the  Statute  of  Frauds  it 
is  also  enacted  that  a  lease,  which  might  at  common 
law  have  been  made  by  mere  words,  shall  now  be 

they  are  bound  to  pay  their  rent  to  him.  The  situation  of  tenants  of 
the  mortgagor  who  became  such  after  the  mortgage  is  diflPerent,  for 
the  mortgagee  is  not  assignee  of  the  reversion  with  respect  to  them. 
Mere  notice  to  them  by  the  mortgagee  of  the  mortgage,  is  not  sufficient 
to  create  the  relation  of  landlord  and  tenant  between  them  and  him. 
See  the  notes  to  Moss  v.  Gallimore,  referred  to  above,  and  Evans  v. 
Elliott,  9  A.  &  E.  342,  (36  E.  C.  L.  R.  159,).  See  also  as  to  where 
a  new  tenancy  will  be  implied  between  these  parties,  the  notes  to 
Keech  V.  Hall,  1  Smith's  L.  C.  295  ;  Brown  v.  Storey,  1  M.  &  Gr. 
117,  (39  E.  G.  L.  R.  372,) ;  The  Mayor  of  Poole  v.  Whitt,  15  M.  & 
W.  571  ;*  and  Turner  v.  Cameron's  Coalbrook  Steam  Coal  Company, 
5  Exch.  932.  Where  a  mortgagee  out  of  possession  gave  notice  of 
the  mortgage  to  a  tenant  whose  occupation  began  since  the  mortgage, 
and  afterwards  made  an  entry  on  the  land,  it  was  held  that  he  could 
not  maintain  trespass  for  mesne  profits  against  the  tenant  in  respect 
of  the  occupation  prior  to  the  entry.  Litchfield  v.  Ready,  5  Exch. 
939.(a) 

7  See  s.  3. 

^  See  ante,  p.  62,  note  ^,  where  this  section  is  given  at  length. 

(a)  For  the  American  law  on  the  subject  of  this  note,  see  the 
note  by  the  American  editor  of  Smith's  Leading  Cases,  to  Moss  v. 
Gallimore,  1  Smith's  L.  C.  5  Am.  Ed.  p.  697. 


ASSIGNMENT    BY   ACT    OF    PARTIES.      359 

invalid  unless  reduced  into  writing  and  signed  as  the 
statute  directs ;  with  the  exception  of  certain  leases 
for  terms  not  exceeding  three  years  from  the  making, 
which  are  still  good,  though  by  words  only  ;^  but 
though  leases  of  this  description  (being  expressly 
excepted  out  of  this  statute)  can  be  made  by  mere 
words,  yet  they  cannot  be  assigned  without  writing, 
the  enactment  in  the  Statute  of  Frauds  regarding 
assignments  containing  no  exception  similar  to  that 
regarding  leases;  Botting  v.  Martin^  1  Camp.  318  {a)}^ 

Next  as  to  the  consequences  of  an  assignment. 

At  common  law,  the  rule  which  I  have  already  stated, 
that  a  contract  cannot  he  assigned  though  an  estate  may^ 
produced  extremely  awkward  consequences  when  a 
landlord  assigned  his  reversion.  In  such  cases  the 
occupying  tenant  was  bound  to  *pay  rent  to  the  r^ooQ-, 
assignee  and  might  be  sued  in  debt  for  it,  for 
that  liability  was  considered  to  arise  out  of  his  relation 
to  the  land  and  to  be  inseparable  from  it ;  but,  inas- 
much as  covenants  are  distinct  contracts  and  not  any 
essential  part  of  a  lease,  it  was  held,  that,  if  the  land- 
lord assigned  his  reversion,  the  assignee  could  not  sue 
on  the  covenants  contained  in  the  lease,  nor,  on  the 
other  hand,  could  he  be  sued  upon  them.  And  thus 
all  the  most  carefully  framed  covenants  were  liable  to 
be  rendered  useless  by  a  mere  assignment,  for,  though 

9  See  ante,  pp.  62-64. 

^°  And  it  would  seem  that  an  assignment  which  is  invalid  under  the 
Statute  of  Frauds,  because  not  in  writing,  cannot  operate  as  an  under- 
lease. Barrett  v.  Rolph,  14  M.  &  W.  348.*  But  the  decisions  on 
this  point  are  not  consistent.  See  Poulteney  v.  Holmes,  1  Str.  405; 
and  the  judgments  in  Pollock  v.  Stacy,  9  Q.  B.  1034,  (58  E.  C  L. 
R.  1034,)  and  Cottee  v.  Richardson,  7  Exch.  151. 


(rt)  But  see  ante,  note  to  page  225. 


360  LANDLORD    AND    TENANT. 

the  original  parties  to  the  lease  might,  it  is  true,  still 
sue  each  other  upon  their  express  covenants,  yet,  it  is 
obvious  that  the  main  object  of  introducing  those 
covenants  into  the  lease  was,  that  the  person  in  actual 
j>ossession  of  the  land  should  ahcays  be  under  certain 
stipulations  ivith  regard  to  the  ovoner  of  the  reversion 
immediately  expectant  on  his  estate;  and,  vice  versa,  that 
the  O'eversioner  shoidd  alioays  he  sidjject  to  certain  stipula- 
tions and  ohligations  tDith  regard  to  his  tenant — an  object 
which  the  assignment  altogether  defeated.  Thus,  for 
instance,  suppose  at  common  law,  the  tenant  had  been 
under  a  covenant  to  repair,  the  landlord  had  assigned, 
and  then  the  covenant  had  been  broken.  The  assignee 
of  the  reversion,  although  the  only  person  who  had 
any  interest  in  enforcing  the  observance  of  this  cove- 
nant, had  no  right  of  action  on  it,  the  covenant  being 
a  chose  in  action,  and,  consequently,  not  having  passed 
r*9^J-T  ^^  *him  by  the  assignment  of  the  original 
lessor ;  the  only  person  who  could  sue  on  it  was 
the  original  lessor  himself  though  he  had  ceased  to 
have  any  interest  in  the  premises  to  which  the  covenant 
related.^^ 

This  state  of  things  was  found  so  inconvenient  that 
it  occasioned  the  passing  of  the  famous  Statute  32  Hen. 
VIII.  c.  34,  which  enacted  "  that  aU  persons  being  gran- 
tees or  assignees  to  or  by  the  king,  or  to  or  by  any  other 
persons  than  the  king,  and  their  heirs,  executors,  suc- 
cessors, and  assigns,  shaU  have  like  advantages  against 
the  lessees,  their  executors,  administrators,  and  assigns, 

^^  These  consequences  followed  from  the  common  law  rule  men- 
tioned in  the  text,  and  which  is  expressed  in  the  preamble  of  the  32 
Hen.  8,  c.  34,  in  the  following  words:  ^^hy  the  common  late  of  this 
realm,  no  stranger  to  any  covenant,  action,  or  condition,  shall  take  any 
advantage  or  henejit  of  the  same  hy  any  means  or  icays  in  the  law,  hut 
only  such  as  hej^arties  or  privies  thereunto." 


ASSIGNMENT    BY    ACT    OF    PARTIES.      3G1 

by  entry  for  non-payment  of  the  rent,  or  for  doing  of 
waste  or  other  forfeiture,  and  by  action  only,  for  not 
performing  other  conditions,  covenants,  or  agreements, 
expressed  in  the  indentures  of  leases  and  grants  against 
the  said  lessees  and  grantees,  their  executors,  adminis- 
trators, and  assignees,  as  the  said  lessors  and  grantors, 
their  heirs,  or  successors,  might  have  had." 

Section  2  enacted,  "  that  all  lessees  and  grantees  of 
lands,  or  other  hereditaments,  for  terms  of  years,  life 
or  lives,  their  executors,  administrators,  or  *as-  j.^^^.^-. 
signs,  shall  have  like  action  and  remedy  against 
all  persons  and  bodies  politic,  their  heirs,  successors, 
and  assigns,  having  any  gift  or  grant  of  the  king,  or  of 
any  other  persons,  of  the  reversion  of  the  lands  and 
hereditaments  so  letten,  or  any  parcel  thereof,  for  any 
condition  or  covenant  expressed  in  the  indentures  of 
their  leases,  as  the  same  lessees  might  have  had  against 
the  said  lessors  and  grantors,  their  heirs  and  suc- 
cessor.^^(a) 

^2  These  are  not  the  precise  words  of  the  32  Hen,  8,  c.  34,  but  the 
substance  of  the  statute  is  given.  This  statute  applies  only  to  leases 
hy  deed;  therefore  where  a  lease  is  not  under  seal,  the  assignee  of  the 
reversion  on  it  cannot  sue  the  lessee  upon  the  contracts  made  in  the 
lease  between  the  latter  and  the  assignor.  Standen  v.  Chrismas,  10 
Q.  B.  135,  (59  E.  C.  L.  K.  135,).  It  also  follows,  that  where  the 
lease  is  not  under  seal  the  lessor  does  not  lose  any  of  his  rights  of 
action  upon  it  against  the  lessee  by  assigning  his  reversion  to  a  third 
person.  See  Bickford  v.  Parson,  5  C.  B.  920,  (57  E.  C.  L.  R.  920,). 
The  better  opinion  appears  to  be  that,  at  common  law,  covenants  ran 
with  the  land,  but  not  with  the  reversion.  See  the  notes  to  Thursby 
V.  Plant,  1  Wms.  Saund.  2-40  a;  and  the  judgments  in  the  case  last 
cited. 

(a)  This  statute  is  in  force  in  Pennsylvania  and  Illinois.  See  the 
Rep.  of  the  Judges,  3  Binney,  Plumleigh  v.  Cook,  13  111.  669. 

It  refers,  however,  only  to  the  remedies  for  and  against  the  gran- 
tees and  assignees  of  the  reversion.     It  does  not  apply  to  remedies 


362  LANDLORD    AND    TENANT. 

So  that  you  see  the  first  section  gives  the  assignee 
of  a  reversion  the  same  remedies  against  the  lessee  and 
his  assigns  as  the  original  landlord  would  have  had 
against  the  original  tenant.  And  the  second  section 
gives  the  tenant  and  his  assigns  the  same  remedy 
against  the  reversioner  and  his  assigns,  as  they  would 
have  had  against  the  original  landlord. 

This  statute  although  so  general  in  its  terms  that 
it  would  2^^'^^^^^f-  fcicie  seem  to  emhrace  every  possible 
covenant  between  a  landlord  and  tenant  has  never- 
r*9Sn  ^^^*^^^^^  been  construed  to  include  only  *cove- 
nants  relating  to  the  subject  ^natter  of  demise, 
such  as  in  technical  lano-uag'e  are  said  to  run  icith  the 
7and.(ci)     And  the  reasonableness  and,  indeed,  neces- 

between  lessors  and  the  assignees  of  lessees.  Those  cases  are  provided 
for  by  the  common  law.  Lewis  v.  Campbell,  8  Taiiat.  728,  (4  E.  C. 
L.  R.  355,) ;  Middlemore  v.  Goodale,  Cro.  Car.  503  j  Thursley  v. 
Plant,  1  Wms.  Saund.  240;  Pollard  v.  Schaffer,  1  Ball.  211; 
Weidner  v.  Foster,  2  Penna.  26;  White  v.  Whitney,  3  Met.  81; 
Shelton  v.  Codman,  3  Cush.  318 ;  Fairbanks  v.  Williamson,  7 
Greenl.  96 ;  Heath  v.  Whidden,  17  Shep.  383  ;  Martin  v.  Baker, 
5  Blackford,  232;  Allen  v.  Culver,  3  Denio,  284;  Bowdre  v. 
Hampton,  G  Rich.  208. 

An  assignment  of  the  rent  without  the  reversion,  carries  with  it 
no  right  of  action  on  the  covenants  contained  in  the  lease.  Allen  v. 
Wooley,  1  Blackf.  149 ;  Randolph  v.  Kinney,  3  Rand.  394. 

(a)  The  learning  on  the  subject  of  covenants  running  with  the 
land,  admits  of  many  and  nice  distinctions,  and  is  very  thoroughly 
gone  into  in  the  notes  to  Spencer's  case  by  the  English  and  American 
editors  of  Smith's  Leading  Cases,  5  Am.  Ed.  Vol.  I.,  p.  139,  &c.,  to 
which  the  reader  is  referred.  It  was  held  in  Mitchell  v.  Warner,  5 
Conn.  497,  that  the  covenant^  to  carry  the  right  to  a  remedy  upon  it 
to  the  assignee,  must  relate  to  lands  and  tenements;  consequently 
when  the  conveyance  was  of  the  privilege  of  drawing  water  from  a 
pond,  this  not  being  a  conveyance  of  land,  a  covenant  respecting  the 
privilege,  was  not  allowed  to  be  enforced  by  an  assignee  of  the  grantee. 


ASSIGNMENT    BT    ACT    OF    PAKTIES.      oG3 

sity  of  this  construction  will  be  obvious  to  you  after  a 
very  few  moments'  consideration,  for,  any  covenant 
whatever  may  be  inserted  in  a  lease.  Now,  suppose 
A.  leases  to  B.,  and  B.  besides  the  usual  covenants  con- 
tained in  a  lease,  covenants  to  pay  A.  a  gross  sum  of 
money,  say  100?.  A.  assigns  his  reversion  before  the 
lOOZ.  is  paid.  Now,  it  is  very  reasonable  that  the 
assignee  should  sue  upon  the  covenant  to  keep  the  pre- 
mises in  repair,  or  to  pay  rent,  or  any  covenant  of  that 
description,  Avhich  concerns  the  condition  of  the  pre- 
mises, the  reversion  of  which  has  been  assigned  to  him, 
but  how  absurd  would  it  be  to  say  that  the  assignee 
should  not  only  sue  on  these  covenants,  the  perform- 
ance of  which  is  for  his  benefit,  but  shoidd  likewise 
sue  B.  if  he  neglected  to  pay  A.  the  100/.,  the  payment 
or  non-payment  of  which  could  not  concern  the  assignee 
at  all.  Accordingly,  the  Courts  have  put  the  rational 
construction  on  the  act,  and  it  is  settled  that  it  trans- 
fers to  the  assignee  only  the  benefit  of  such  covenants 
as  touch  and  concern  the  thing  demised.  You  will  find 
that  laid  down  at  the  conclusion  of  Spencer's  Case,  5 
Coke,  16,  which  is  the  great  authority  on  this  branch 
of  the  law.^^ 

*Now  then,  bearing  in  mind  that  the  assig-   r*90'Y-| 
nee  of  the  landlord  has  a  right  to    sue   the 
tenant,  and  vice  versa,  the   assignee  of  the  tenant  the 

"  See  the  notes  to  this  case,  1  Smith's  L.  C.  27 ;  and  Mayho  v. 
Buckhurst,  Cro.  Jac.  438.  In  Pargeter  v.  Harris,  7  Q.  B.  708,  (53 
E.  C.  L.  R.  708,)  the  recitals  contained  in  a  lease  showed  that  the 
land  was  mortgaged,  and  that  the  lessors  had  only  an  equity  of  re- 
demption. The  mortgagor  was  not  a  party  to  the  lease,  but  the  lessee 
covenanted  to  pay  a  yearly  sum  in  part  of  the  interest  on  the  mort- 
gage, at  an  office  mentioned  in  the  deed,  and  which  was  described  as 
the  place  where  the  interest  on  the  mortgage  was  payable  half-yearly. 
It  was  held  this  was  a  covenant  in  gross. 


364  LANDLORD    AND    TENANT. 

landlord,  upon  covenants  which  touch  and  concern  the 
thing  demis€d,{a)  and  on  no  others,  I  must  enumerate 
to  you  the  principal  covenants  which  have  been  decided 
to  touch  and  concern  the  thing  demised,  and,  consequently, 
to  be  capable  of  being  put  in  suit  by  assignees.  And, 
if  you  refer  to  the  cases,  or  to  some  of  them,  their  peru- 
sal wdll  give  you  a  clear  notion  of  the  state  of  the  law 
upon  this  subject.  In  the  first  place  it  is  a  rule  that 
all  implied  covenants  run  with  the  land^^  for  instance, 
the  covenant  to  pay  rent  which,  as  I  said  in  a  former 
Lecture,^^  the  law  implies  from  the  words  "  yielding 
and  paying''''  in  a  lease,  even  if  there  be  no  express 
covenant.  And  so,  likewise,  you  wdll  find  it  laid  down 
in  Spencer's  Case  that,  if  a  man  makes  a  lease  by  the 
words  "  demise  and  grant^''  from  which  words,  if  there 
r*9S81  ^^  ^'^  *express  covenant  for  quiet  enjoyment, 
the  law  implies  one,^*^  the  right  to  sue  on  this 

'^^  It  would,  it  is  apprehended,  be  more  correct  to  say  that  all  cove- 
nants implied  hylaio,  that  is,  all  covenants  in  law,  run  with  the  land. 
For,  as  is  explained  by  the  Court  in  Williams  v.  Burrell,  1  C.  B.  402, 
(50  E.  C.  L.  K..  402,)  there  ai-e  many  impJied  covenants  which  are 
not  covenants  in  laic,  and  it  would  seem  that  it  is  only  covenants  of 
the  latter  description  which  necessarily  run  with  the  land.  See  as  to 
this  distinction,  post,  p.  293,  note  ^^. 

1*  Ante,  p.  96. 

^^  Since  the  8  &  9  Vic.  c.  106,  s.  4,  the  word  '^grant"  does  not 
imply  any  covenant  in  law  in  respect  of  any  tenements  or  heredita- 
ments, except  in  cases  in  which  by  force  of  any  Act  of  Parliament  it 
may  have  this  effect.     See  ante,  p.  68,  note. 

(a)  There  are  numerous  American  cases  affirming  the  principle 
that  the  covenants  which  run  with  the  land  must  touch  and  concern 
the  thing  demised.  Nesbit  v.  Nesbit,  C.  &  N.  324;  Norman  v.  Wells, 
17  Wend.  136 ;  Lamitti  v.  Anderson,  6  Cow.  302  ;  Taylor  r.  Owen, 
2  Blackf.  301 ;  Dunbar  v.  Jumper,  2  Yeates,  74  ;  Kimpton  v. 
Walker,  9  Verm.  191;  Tallman  v.  Coffin,  4  Conist.  134. 


ASSIGNMENT    BY    ACT    OF    PARTIES.      365 

implied  covenant  if  he  be  evicted,  passes  to  the  tenant's 
assignee.  But,  besides  these  implied  covenants,  there 
are  many  express  ones,  which  so  far  concern  the  de- 
mised premises  that  the  assignee  may  take  advantage 
of  them.  Such  are  express  covenants  for  quiet  enjoy- 
ment. Campbell  v.  Lewis,  3  B.  &  A.  392,  (5  E.  C.  L. 
E,.  230,) — further  assurance,  Midiilemore  v.  Goodale, 
Cro.  Car.  503 — renewal.  Roe  v.  Hayley,  12  East.  464 — 
to  repair,  Dean  and  Chapter  of  Windsor's  Case,  5  Co. 
24.  And  see  further  examples  in  Mayor  of  Congleton 
V.  Pattison,  10  East.  130  ;  Tatem  v.  Chaplin,  2  H. 
Black.  133;  Vernon  v.  Smith,  5  B.  &  A.  1,  (7  E.  C.  L. 
R.  3,) ;  Vyvyan  v.  Arthur,  1  B.  &.  C.  410,  (8  E.  C.  L. 
R  175,)."(a) 

"  See  also  as  to  the  covenant  for  renewal,  Brook  v.  Bulkeley,  2 
Ves.  Sen.  498,  and  Simpson  v.  Clayton,  4  Bing.  N.  C.  758,  (33  E. 

(a)  In  America  the  covenants  for  quiet  enjoyment,  further  assur- 
ance and  warranty  run  with  the  land  until  breach.  Markland  v. 
Crump,  1  Dev.  &  Bat.  94 ;  Keath  v.  Widden,  11  Shep.  383  ;  Martin 
V.  Baker,  5  Blackf.  232  ;  Carter  v.  Denman,  3  Zabr.  232  ;  Suydam  v. 
Jones,  10  Wend.  180  ;  Wymann  v.  Ballard,  12  Mass.  306  ;  Sprague 
V.  Baker,  17  Mass.  586 ;  De  Chaumont  v.  Forsythe,  2  Penna.  507  ; 
Witby  V.  Mumford,  5  Cow.  137 ;  Williams  v.  Witherbee,  1  Aik. 
233  ;  King  v.  Kerr,  5  Ham.  156  ;  Clark  v.  Redman,  1  Blackf.  381 3 
Mitchell  V.  Warner,  5  Conn.  497  ;  Williams  v.  Beeman  2  Dev.  483 ; 
Van  Home  v.  Crain,  1  Paige,  455 ;  Brown  v.  Staples,  28  Maine,  (15 
Shep.  497,) ;  Fowler  i;.' Poling,  6  Barb.  Sup.  Ct.  165;  Redwine  v. 
Brown,  10  Geo.  311;  Rawle  on  Covenants  of  Title,  ch.  8. 

The  covenants  of  seizin,  of  right  to  convey,  and  against  incum- 
brances, are  in  America,  except  in  Indiana,  and  perhaps  Ohio,  held, 
contrary  to  the  English  doctrine,  to  be  of  necessity  broken,  if  ever, 
as  soon  as  made,  and  thus  are  turned  to  a  mere  right  of  action,  which 
is  not  assignable.  Hacker  v.  Storer,  8  Greenleaf,  228 ;  Heath  v. 
Widden,  24  Maine,  383;  Williams  v.  Witherbee,  1  Aikeus,  233; 
Gerfield  v.  Williams,  2  Verm.  327  ;  llichardson  v.  Dorr,  5  Verm.  9 ; 


3G6  LANDLORD    AND    TENANT. 

r*9Qq-|       *Here  I  must  mention  a  point,  which  is  one 
of  so  much  nicety  that  you  may  find  some  diffi- 

C.  L.  R.  522,) ;  and  as  to  the  covenant  for  quiet  enjoyment,  "Williams 
V.  Burrell,  1  C.  B.  402,  (50  E.  C.  L.  R.  402,)  and  ante,  p.  207,  note 
2^.     It  appears  to  be  clear  that  a  covenant  to  repair  runs  with  the 

Mitchell  V.  Warner,  5  Conn.  497  ;  Bickford   v.  Page,  2  Mass.  455 
Wheelock  v.   Thayer,   16  Pick.   68;  Clark  v.   Swift,  3   Met.  390 
Greenby  v.  Wilcocks,  2  Johns.  1 ;  Hamilton  v.  "Wilson,  4  Johns.  72 
Townsend  v.  Morris,  6  Cowen,  123  ;  Beddoes  Ex's  v.  "Wadsworth,  21 
W^end.  120;  M'Carty  v.  Leggett,  3  Hill,  134;  Lot  v.   Thomas,! 
Pennington,  407  ;    Chapman  v.  Holmes,   5  Halst.  20 ;  Garrison  v. 
Sandford,  7  Halst.  261 ;  "Wilson  v.  Forbes,  2  Dev.  30 ;  Pierce  v.  Duval, 
9  B.  Munroe,  48  ;  Logan  v.  Moulder,  1  Pike,  313 ;  Stinson  v.  Sum- 
mei-,  9   Mass.   143  ;  Iledwine  v.  Brown,  10  Geo.   311 ;  Martin  v. 
Baker,  5  Blackf.  232;  Foote  v.  Burnet,  10  Ohio,  317. 

See  also  Rawle  on  Covenants  of  Title,  ch.  8,  where  this  subject  is 
fully  and  satisfactorily  canvassed. 

Covenants  to  pay  rent  run  with  the  land.  Hurst  v.  Rodney,  1 
Wash.  C.  C.  375. 

So  also  covenants  to  repair,  and  to  rebuild,  and  insure.  Damar- 
est  V.  Willard,  8  Cow.  206;  Norman  v.  Wells,  17  Wend.  148; 
Pollard  V.  Schaffer,  1  Dall.  210 ;  Thomas  v.  Von-Kapff,  6  Gill.  & 
Johns.  372  ;  Harris  v,  Goslin,  3  Harring.  338. 

It  was  held  in  Norman  v.  Wells,  17  Wend.  136,  that  a  covenant 
not  to  let  or  establish  any  other  site  on  the  same  stream  to  be  used 
for  sawing  mahogany,  is  a  covenant  running  with  the  land,  on  which 
an  assignee  can  maintain  an  action  whenever  a  new  mill  for  sawing 
mahogany  is  erected. 

The  purchaser  at  a  sheriff's  sale  is  such  an  assignee  as  may  main- 
tain an  action  on  all  preceding  covenants  that  run  with  the  land. 
Andrews  v.  Wolcott,  16  Barb.  21;  Lewis  v.  Cook,  13  Ired.  193; 
McCrady  v.  Brisbane,  1  N.  &  M.  J04;  Tufts  v.  Adams,  8  Pick.  547; 
Streaper  v.  Fisher,  1  R.  155. 

A  purchaser  at  sheriff's  sale,  who  has  no  right  to  the  possession  or 
profits  of  the  land  until  the  acknowledgment  of  the  deed,  is  not  per- 
sonally liable  for  the  rent  accruing  between  the  day  of  the  sale,  and 
the  execution  of  his  deed.     Thomas  v.  Connell,  5  Barr,  13. 


ASSIGNMENT    BY    ACT    OF    PARTIES.      367 

ciilty  in  *bearing  it  in  mind;  bnt  still  it  is  so  r#9qn-| 
important,  that  I  must  not  leave  it  unmen- 

land,  and  with  the  reversion.  See  Lougher  v.  Williams,  2  Lev.  92 ; 
Buckleys.  Pirk,  1  Salk,  317 ;  and  Wakefield  v.  Brown,  9  Q.  B.  209, 
(58  E.  C.  L.  R.  209,).  In  the  last  of  these  cases,  the  covenant  on 
which  the  action  was  brought  had  been  entered  into  by  the  lessee 
with  three  persons,  and  it  appeared  on  the  lease  that  one  of  them  had 
no  legal  estate  in  the  premises,  and  that  of  the  other  two  covenantees 
one  had  the  legal  estate  at  the  time  of  the  granting  of  the  lease, 
having  a  term  in  it  for  sixty-one  years  wanting  a  day,  and  the  other 
had  a  reversion  of  one  day  on  this  term.  It  was  held,  after  the  death 
of  the  covenantee  who  had  no  legal  estate  in  the  land,  that  the  sur- 
viving covenantees  might  join  in  an  action  against  the  assignee  of  the 
lessee  for  not  repairing  the  premises.  It  has,  however,  been  thought 
that  covenants  will  not  run  with  the  land  unless  they  have  been  made 
with  the  person  having  the  legal  estate  in  it.  4  Jarman  on  Convey. 
42'i  (3d  Edit.)  ',  see  also  the  judgment  of  Lord  Kenyon  in  Webb  v. 
Russell,  3  T.  R.  401 ;  Pargeter  v.  Harris,  cited  ante,  p.  286,  note  ^^j 
and  Magnay  v.  Edwards,  13  C.  B.  479,  (76  E.  C.  L.  R.  479,).  The 
facts  of  several  of  the  cases  mentioned  in  the  text  show  so  clearly  the 
application  of  the  rule  of  law  with  respect  to  covenants  running  with 
the  laud,  that  it  may  be  useful  to  refer  to  them  here.  In  Tatem  v. 
Chaplin,  it  was  held  that  a  covenant  in  a  lease  that  the  lessee,  his 
executors  and  administrators,  should  constantly,  during  the  demise, 
reside  on  the  premises,  was  binding  on  the  assignee  of  the  lessee, 
although  he  was  not  named.  In  the  Mayor  of  Congleton  v.  Pattison, 
where  a  piece  of  ground  had  been  demised  on  which  the  lessee  was  to 
erect  a  silk  mill,  and  the  lessee  had  covenanted  for  himself,  his  execu- 
tors, administrators,  and  assigns,  that  he  would  not  hire  persons  to 
work  in  the  mill  who  were  settled  in  other  parishes  without  a  certifi- 
cate of  their  settlement ;  it  was  held  that  this  was  a  collateral  cove- 
nant which  did  not  bind  the  assignee  of  the  land.  It  would  appear 
from  the  judgment  of  Lord  Ellenborough  in  this  case,  that  a  covenant 
not  to  carry  on  a  particular  trade  on  the  premises  will  run  with  the 
land.  In  Vernon  v.  Smith,  also  cited  above,  it  was  held  that  a  cove- 
nant to  insure  against  fire  premises  which  were  situated  within  the 
limits  of  the  weekly  bills  of  mortality,  ran  with  the  land ;  s.  83  of 
the  old  Metropolitan  Buildings  Act,  the  14  Geo.  3;  c.  78  (a  section 


368  LANDLORD    AND    TENANT. 

tionecl,  I  have  already  told  yon  that  the  only  cove- 
nants an  assignee,  whether  he  be  the  assignee  of  the 
landlord  or  of  the  tenant,  can  avail  himself  of,  are  those 


which  is  still  in  force),  enabling  the  owner  of  the  estate  to  have  the 
sum  insured  laid  out  in  rebuilding  the  premises.  And  in  Vyvyan  v. 
Arthur,  it  was  held  that  an  implied  covenant  by  a  lessee  to  grind  at 
the  mill  of  the  lessor  all  the  corn  grown  on  the  lands  demised,  ran 
with  the  land  so  long  as  it  and  the  mill  belonged  to  the  same  person. 
In  a  later  case  than  that  last  mentioned,  a  lease  of  an  undivided  third 
part  of  a  mine  contained  a  recital  of  an  agreement  made  between  the 
lessee,  the  lessor,  and  the  owner  of  the  other  two-thirds,  for  pulling 
down  an  old  smelting  mill,  and  building  another  of  a  larger  size  upon 
land  which  adjoined  the  mine,  and  under  which  the  mine  seems  to 
have  extended.  The  lease  contained  a  covenant  by  the  lessee  to  keep 
the  new  mill  engaged  to  be  erected  in  repair,  and  to  deliver  it  up  in 
good  condition  at  the  end  of  the  term,  but  did  not  contain  any  express 
covenant  to  build  the  new  mill.  It  was  held  by  the  Court  of  King's 
Bench,  and  afterwards  by  the  Court  of  Exchequer  Chamber,  that 
such  a  covenant  was  to  be  implied,  and  that  the  assignee  of  the  re- 
version might  sue  upon  it.  See  Sampson  v.  Easterby,  9  B.  &  C  505, 
(17  E.  C.  L.  R.  230,) ;  S.  C.  in  error,  6  Bing.  C44,  (19  E.  C.  L.  R. 
291,) ',  and  see  also  as  to  implying  a  covenant  in  cases  of  this  descrip- 
tion, Rashleigh  v.  the  South  Eastern  Railway  Co.,  10  C.  B.  612,  (70 
E.  C.  L.  R.  612,).  A  covenant  to  leave  part  of  the  land  as  pasture, 
runs  with  the  land,  Cockson  v.  Cock,  Cro.  Jac.  125 ;  so  do  covenants 
to  cultivate  the  land  in  a  particular  manner,  Woodfall's  Landlord  and 
Tenant,  81,  (6th  Edit.) ;  and  covenants  to  produce  title  deeds.  Bar- 
clay V.  Raine,  1  Sim.  &  St.  448.  In  Jourdain  v.  "Wilson,  4  B.  &  A. 
266,  (6  E.  C.  L.  R.  478,)  a  landlord  covenanted  to  supply  the  de- 
mised premises,  which  consisted  of  two  houses,  with  a  sufficient  quan- 
tity of  good  water,  at  a  certain  rate  of  payment  for  each  house,  and 
it  was  held  that  this  covenant  ran  with  the  land  and  with  the  rever- 
sion. A  general  covenant  not  to  assign,  in  which  the  assigns  are  not 
mentioned,  does  not  run  with  the  land.  Philpot  v.  Hoare,  2  Atk. 
219  ;  the  judgment  in  Bally  v.  Wells,  3  Wils.  33  ;  and  ante,  p.  118, 
note.  See  further  as  to  covenants  running  with  the  land,  the  notes 
to  Duppa  V.  Mayo,  1  Wms.  Saund.  288  b ;  Wootton  v.  SteflFenoni,  12 
M.  &  W.  129  ;*  and  the  notes  to  Spencer's  Case,  1  Smith's  L.  C  27. 


ASSIGNMENT   BY   ACT   OF   PARTIES.        369 

which  touch  and  concern  (lie  tiling  demised.     But  even 
among  covenants  luJdch  do  touch  and  concern  the  thing 
demised  a  distmction  prevails ;  for  there  are  some  of 
them  which  bind  the  assignee,  if  the  word  "  assigns" 
be  used  in  the  covenant,  but  otherwise  do  not.     The 
criterion  is  stated  in  Spencer's  Case  in  the  first  two 
resokitions,  and  it  is  this: — if  the  covenant  concern 
something  which  is  in  being  at  the  time  of  making  the 
covenant,  and  is  part  and  parcel  of  the  demised  pre- 
mises, there  it  will  *bind  the  assignee  even   r«9Qi-| 
though  not  named ;  but  if  it  relate  to  some- 
thing which  is  not  in  being  at  the  time  of  making  the 
covenant,  there  it  will  not  bind  the  assignees  unless 
they  are  named.     For  example,  if  at  the  time  of  the 
lease  there  is  a  house  standing  on  the  demised  pre- 
mises, and  the  tenant  or  landlord  covenants  to  keep  it 
in  repair,  this  covenant  would  bind  the  assignees  of 
the  covenator,  although  not  named — for  the  house  was 
part  and  parcel  of  the  demised  premises  at  the  time  of 
making  the  lease.     But,  if  the  covenant  had  been  to 
build  a  new  house  on  the  premises,  although  this  cove- 
nant would  bind  the  assignees  if  the  covenantor  had 
covenanted  for  himself  and  his  assigns,  yet  if  he  omit 
the  word  assigns,  the  assignees  will  not  be  bound  by 
it,  because  the  house  was  not  in  being  at  the  time  at 
which  the  covenant  was  entered  into.     You  will  find  a 
good  example  of  this  in  Sampson  v.  Easterby,  which 
was  decided  first  in  the  Queen's  Bench  in  9  B.  &  C. 
505,  (17  E.  C.   L.  K  230,);  and  afterwards  in  the 
Exchequer  Chamber  on  a  writ  of  error,  in  6  Bing.  6J:4, 
(19  E.  C.  L.  B.  291,*).^^) 

^^  la  this  case,  which  is  mentioned  more  at  length  in  the  last  note, 
the  point  decided  was  that  the  covenant  ran  with  the  reversion  ;  that 

{'.()  Harris  v.  Coulbourn,  3  Ilarriug.  338;  Tallman  v.  Coffin,  4 

24 


370  LANDLORD    AND    TENAN'T. 

r* 900-1       *Such  then  is  the  effect  of  an  assignment, 

either  of  the  term,  or  of  the  reversion,  upon 

the  new  party — on  the  assignee — which  may  be  summed 

up  by  saying,  that  subject  to  the  distinction  I  have  just 

is  to  say,  that  the  assignee  of  the  lessor  was  entitled  to  sue  upon  it. 
But  the  Court  observed,  that  the  covenant  had  been  made  with  the 
lessor,  his  heirs  or  assigns,  and  the  distinction  mentioned  in  the  text 
applies  as  much  to  covenants  which  run  with  the  reversion,  as  to 
those  which  run  with  the  land.  This  rule  is  illustrated  by  the  recent 
case  of  Doughty  v.  Bowman,  11  Q.  B.  444,  (63  E.  C.  L.  B.  444,). 
In  this  case  a  lessee  covenanted  for  himself,  his  executors,  adminis- 
trators, and  assigns,  to  pay  rent,  and  to  build  on  the  land  demised 
four  houses  within  a  specified  time  ;  and  the  lease  contained  a  proviso 
for  re-entry  upon  the  non-performance  of  any  of  the  covenants.  The 
lessee  afterwards  underlet  the  premises  to  a  third  person  for  the 
residue  of  the  term  wanting  one  day.  At  the  time  of  the  making  of 
the  underlease,  the  houses  had  not  been  built,  but  the  time  for  build- 
ing them  had  not  expired.  The  lessee  covenanted  with  the  under- 
lessee  that  he,  the  lessee,  his  heirs,  executors,  or  administrators  (not 
naming  Jiis  assigns),  would  pay  the  rent  reserved  on  the  original  lease, 
and  perform,  or  effectually  indemnify  the  under-lessee  against  all  the 
covenants  contained  in  it  on  the  lessee's  or  assignee's  part  to  be  per- 
formed. The  lessee  afterwards  assigned  his  reversion  on  the  under- 
lease. It  was  held  by  the  Court  of  Queen's  Bench,  and  afterwards 
by  the  Court  of  Exchequer  Chamber,  that  the  covenant  in  the  under- 
lease, by  which  the  lessee  undertook  to  perform  the  covenants  in  the 
original  lease,  or  to  indemnify  the  under-lessee,  did  not  pass  with  the 
reversion,  and  that  the  assignees  of  the  lessee  were  not  bound  by  it. 
The  grounds  of  this  decision  were,  that  the  covenant  in  question  was 
either  one  of  indemnity  only,  and  therefore  merely  collateral,  or  that 
if  it  amounted  to  a  covenant  on  the  part  of  the  lessee  to  build  the 
houses  mentioned  in  the  original  lease,  it  related  to  a  thing  not  in 
esse,  and  there/ore  did  not  hind  the  assignee  of  the  reversion,  who  was 
not  named.  See  also  Greenaway  v.  Hart,  14  C.  B.  340,  (78  E.  C. 
L.  K.  340,). 

Comst.   134 ;  Thompson  v.  Rose,  8  Cowen,  266,  269 ;  Norman  v. 
Wells,  17  Wend.  137 ;  Allen  v.  Culver,  3  Denio,  284. 


ASSIGNMENT   BY   ACT   OF   PARTIES.        371 

stated  he  may  sue,  and  is  liable  to  be  sued  on  all  cove- 
nants which  concern  the  demised  premises,  or  as  we 
usually  say,  run  loltJi  them.  Now  let  us  see  what  is 
the  condition  of  the  party  assigning:  and  the  rule  is 
as  you  will  find  it  shortly  stated  in  the  beginning  of 
Lord  Kenyon's  judgment  in  Auriol  v.  Mills,  4  T.  E,. 
94,  that  if  the  lessee  assign  over  the  lease,  and  the 
lessor  accept  the  assignee  as  his  tenant  either  expressly 
or  impliedly,  as  for  instance  by  receiving  rent  &om  him 
— ^he  cannot  afterwards  bring  an  action  of  debt  for  his 
*rent  against  his  original  lessee :  though  he  may  j-^^Qp... 
if  he  think  proper,  refuse  to  accept  the  assig- 
nee as  his  tenant,  and  so  long  he  may  sue  in  debt  for 
rent  against  the  original  lessee ;  but  whether  he  accept 
the  assignee  of  the  tenant  or  not,  the  original  lessee 
will  continue  liable  on  his  exjjyress  covenants ;  for  those 
are  obligations  which  he  has  brought  on  himself  by  his 
own  deed,  and  was  bound  to  know  the  extent  of  before 
he  entered  into  them.  All  this  you  will  find  laid  do^vn 
in  the  same  judgment  of  Lord  Kenyon;  and  in  Thiu'sby 
V.  Plant,  1  Wms.  Saund.  240.^''(«) 

^^  See  also  Bachelour  v.  Gage,  Cro.  Car.  188  j  Norton  v.  Acklane, 
ib.  580 ;  Barnard  v.  Godscall,  Cro.  Jac.  309 ;  and  Brett  v.  Cumber- 
land, ib.  521.  The  reason  of  this  rule  is  that  although  by  the  assign- 
ment the  privity  of  estate  between  the  lessor  and  the  lessee  is  at  an 
end,  there  is  3i,privitij  of  contract  between  them,  created  by  the  lease, 
and  this  is  not  affected  by  the  assignment.  The  result  of  the  cases 
on  this  subject  is  thus  shortly  stated  in  Coote's  Landlord  and  Tenant, 
p.  337  :  "  The  lessor  and  lessee  are  reciprocally  bound  to  each  other 
for  the  covenants  in  law  by  privity  of  estate,  for  the  covenants  in  deed 
by  privity  of  contract.  When  the  lessor  grants  his  reversion,  the 
privity  of  estate  is  thereby  transferred  to  the  grantee ;  and  the  privity 
of  contract,  in  respect  of  such  covenants  as  run  with  the  land,  is  also 

(a)  Kunckle  v.Wynick,  1  Ball.  305;  Fisher  v.Milliken,8  Barr,lll; 
Dewey  v.  Bupuy,  2  W.  &  S.  556 ;  Ghegan  v.  Young,  11  Harris,  IS. 


372  LANDLORD    AND    TENANT. 

r* 204-1  *The  case,  however,  of  the  assignee  is  dif- 
ferent. If  lie  assign  he  frees  himself  from  all 
future  responsibility,  for  his  liability  springs  altogether 
from  his  relation  to  the  land ;  and,  therefore,  when  he 
parts  mth  that  relation,  he  puts  an  end  to  the  liability. 
And  consequently,  if  A.  lease  to  B.  and  B.  assign  to  C, 
— B.,  the  original  lessee,  continues  liable  on  all  the 
express  covenants  contained  in  the  lease,  and  C,  the 
assignee,  is  liable,  icTiile  he  remains  sucJi,  to  so  many  of 
tliem  as  run  with  the  land^  but  as  soon  as  he  parts  "svith 
his  estate  in  the  land,  he  puts  an  end  to  his  liability 

transferred  by  force  of  the  statute  32  Hen.  8,  c.  34.  When  the  lessee 
assigns  his  estate,  the  privity  of  estate  is  transferred  to  the  assignee  j 
the  lessee  still  remaining  liable  upon  his  privity  of  contract.  When 
the  lessor  or  lessee  dies,  the  covenants  running  with  the  land  devolve 
upon  the  person  to  whom  the  land  passes  :  and  such  covenants  as  are 
merely  collateral  devolve  upon  the  executor."  It  must  be  observed, 
that  within  the  meaning  of  the  rules  thus  laid  down,  implied  cove- 
nants are  not  necessarily  covenants  in  laiv  ;  and  the  expression  "  cove- 
nants in  deed"  extends  to  all  covenants,  whether  express  or  implied, 
which  are  not  covenants  in  law.  For,  as  is  explained  in  the  judg- 
ment of  the  Court  in  Williams  v.  Burrell,  1  C  B.  429^31,  (50  E.  C. 
L.  R.  429— 431,)  many  implied  covenants  differ  only  from  express  cove- 
nants, because  the  meaning  of  the  parties  is,  in  the  former  class  of 
covenants  obscurely,  and  in  the  latter  clearly  and  explicitly  expressed. 
And  covenants  in  law  are,  properly  speaking,  covenants  which  the  law 
itself  implies  from  the  use  of  words  having  a  known  legal  operation 
in  the  creation  of  an  estate;  so  that  after  they  have  had  their  primary 
operation  in  creating  the  estate,  the  law  gives  them  a  secondary  force 
by  implying  an  agreement  on  the  part  of  the  grantee  to  protect  and 
preserve  the  estate  which,  by  the  words  used,  has  been  already  created. 
Such,  for  instance,  is  the  covenant  for  quiet  enjoyment  which  is  im- 
plied by  the  law  from  the  use,  in  a  deed,  of  the  word  "  demise.''  It 
has  been  already  mentioned,  that  where  the  lease  is  not  by  deed  so 
that  the  32  Hen.  8,  c.  34,  does  not  apply,  an  assignment  by  the 
lessor  of  his  interest  does  not  affect  his  rights  of  action  against  the 
lessee.     Bickford  v.  Parson,  5  C  B.  920,  (57  E.  C  L.  B.  920,). 


ASSIGNMENT   BY  ACT   OF   PARTIES.       373 

to  be  sued  on  these  covenants :  and  this  he  may  do  by 
assigning  even  to  an  insolvent  person.    Taylor  v.  Shum, 

1  B.  &  P.  21  ;  Lekeux  v.  Nash,  Str.  1221  ;  Odell  v. 
Wake,  3  Camp.  394.^°  But,  though  his  *lia-  r^oq;:-! 
bility  for  future  breaches  is  thus  at  an  end,  he 
remains  liable  in  respect  of  any  which  he  may  have 
already  committed ;  Harley  v.  King,  5  Tyrwh.  692 ; 
[S.  C.  2  Cr.  M.  &  R.  IS^J.^^a) 

2°  See  also  Barnfather  v.  Jordan,  2  Dougl.  452,  and  Paul  v.  Nurse, 

8  B.  &  C.  486,  (15  E.  C.  L.  R.  241,).  From  the  first  of  these  cases 
it  appears  that  an  assignment  by  an  assignee  even  to  a  married 
woman  is  a  good  answer  to  an  action  against  him  for  rent  accruing 
after  the  assignment  over ;  for  a  married  woman  may  purchase  with- 
out the  consent  of  her  husband,  although  if  he  disagree  the  estate  is 
divested.  An  assignee  is  not,  as  is  obvious,  liable  for  breaches  of 
covenant  committed  by  the  lessee  before  the  assignment.  Therefore, 
where  a  lessee  covenanted  for  himself  and  his  assigns  to  rebuild  a 
house  within  a  certain  time,  and  after  that  time  assigned  the  premises, 
it  was  held  that  the  assignee  was  not  liable  upon  this  covenant. 
Grescot  V.  Green,  1  Salk.  199. 

2^  See  also  as  to  the  liability  of  the  assignee  to  the  lessee,  Burnett 
V.  Lynch,  5  B.  &  C.  589,  (11  E.  C.  L.  R.  597,) ;  and  Smith  v.  Peat, 

9  Exch.  161.  Where  a  lease  is  assigned  there  is,  during  the  continu- 
ance of  the  interest  of  the  assignee,  a  duty  on  his  part  towards  the 
lessee  to  pay  the  rent  and  perform  the  covenants  in  the  lease ;  but 
this  duty  is  commensurate  with  the  time  during  v.hich  the  interest  of 
the  assignee  in  the  premises  lasts.  When  he  has  assigned  over,  his 
liability  in  this  respect  ceases,  so  far  as  relates  to  future  breaches  of 

(a)  Armstrong  v.  Wheeler,  9  Cow.  88.  And  it  has  been  held 
that  any  one  in  the  occupation  of  leasehold  premises,  under  the  lessee, 
will  be  presumed  to  be  an  assignee  of  the  lease  in  favor  of  the  lessors. 
Durando  v.  Wyman,  2  Sandf.  Sup.  Ct.  597  ;  Van  Renssalear  v.  Jones, 

2  Barb.  Sup.  Ct.  R.  643  ;  Carter  v.  Hammitt,  12  Barb.  253.  But 
the  presumption  may  be  rebutted  by  disclosing  the  facts.  Quacken- 
boss  V.  Clarke,  12  Wend.  555  ;  Williams  v.  Woodward,  2  Wend. 
487. 


oTd:  LANDLORD    AND    TENANT. 

Hitherto  I  have  spoken  only  of  assignments  of  the 
whole  interest  in  the  term,  or  in  the  reversion ;  but  it 
r*9Qri  ^^  obvious  that  there  may  be  an  assignment 
*of  part  as  well  as  of  the  whole.  The 
statute  of  Henry  8th,  has  been  held  to  apply  to  these 
cases,  and  to  transfer  the  right  of  suing,  and  the  lia- 
bility to  be  sued  upon  the  covenants,  to  the  assignee 
of  the  part :  1st  Inst.  215  a ;  Kidwelly  v.  Brand,  Plowd. 
69 ;  Twynam  v.  Pickard,  2  B.  &  A.  105 ;  from  which 
last  case  it  appears,  that  not  only  may  a  grantee  of  part 
of  the  reversion  in  the  whole  of  the  lands  maintain 
covenant  against  the  lessee  upon  this  statute,  but  that 
a  grantee  of  the  whole  reversion  in  part  of  the  lands 
may  likewise  do  so.^^     For  instance;  A.  [owner  in  fee] 

the  covenanls  in  the  lease ;  unless  there  is  some  contract  between  him 
and  the  lessee,  which  carries  that  liability  on.  And  this  duty  appears 
to  exist  whether  the  assignment  is  expressed  to  be  made  subject  to  the 
'performance  of  the  covenants  in  the  lease,  or  not.  See  the  cases  last 
cited,  and  Wolveridge  v.  Steward,  1  Cr.  &  M.  644.*  In  the  last- 
mentioned  case  an  assignee  took  leasehold  premises  from  a  lessee  by 
an  indenture  of  assignment  indorsed  on  the  lease,  and  by  the  assign- 
ment the  assignee  was  "  to  have  and  to  hold"  the  premises  for  the 
remainder  of  the  term  granted  by  the  lease,  "  subject  to  the  payment 
of  the  existing  rent,  and  to  the  performance  of  the  covenants  and 
agreements  reserved  and  contained"  in  the  lease.  It  was  held  by  the 
Court  of  Exchequer  Chamber  that  the  assignee  was  not  liable  in  cove- 
nant to  the  lessee  for  the  rent  which  the  latter  had  been  called  on  by 
the  lessor  to  pay  after  the  assignee  had  assigned  over ;  for  the  Court 
was  of  opinion  that  the  words  <'  subject  to  the  payment,  &c.,"  occur- 
ring as  they  did,  after  the  hahendum,  were  not  words  of  agreement 
on  the  part  of  the  assignee,  but  were  merely  descriptive  of  the  obliga- 
tions to  which  the  assignee  was  to  be  liable,  so  long  as  he  continued 
assignee. 

22  See  also  Gates  v.  Cole,  2  Bro.  &  Bing.  660,  (6  E.  C.  L.  B.  318,); 
Wollaston  v.  Hakewill,  3  M.  &  Gr.  297,  (42  E  C.  L.  B.  161,) ;  and 
Wright  V.  Burroughes,  3  C  B.  685,  (54  E.  C.  L.  B.  685,).  In  a 
recent  case  it  has  been  held,  in  accordance  with  the  rule  acted  on  in 


ASSIGNMENT    BY   ACT   OF   PARTIES.        375 

leases  to  B.  Blackacre  and  Whiteacre  under  one  lease. 
Suppose  he  grant  the  whole  reversion  to  C.  for  ten 
years ;  C.  may,  during  these  ten  years,  maintain  actions 
against  B.  for  any  covenants  broken  during  that  time. 
Again,  suppose  A.  grant  C.  the  reversion  in  fee,  not 
however  in  the  whole  of  the  lands  demised,  but  in 
"Whiteacre  only ;  C.  may  maintain  actions  of  covenant 
for  any  covenants  broken,  the  breach  of  which  is  in- 
jurious to  Whiteacre ;  and  so  upon  the  other  hand,  if 
the  lessee  assign  part  of  the  land,  his  assignee  may 
bring  actions  of  covenant  against  the  lessor,  and  the 
lessor's  assignees ;  Palmer  v.  Edwards,  1  Dougl.  187 
note.(a)  But  though  this  *is  the  rule  with  r*9qiY-| 
regard  to  covenants,  it  is  otherwise  with  regard  , 
to  conditions ;  for  it  is  a  rule  of  law,  that  a  condition 
cannot  he  apportioned:  and,  therefore,  if  A.  make  a 
lease  to  B.  with  a  condition  of  re-entry  for  breach  of 
covenants,  and  assign  the  reversion  in  part  of  the  land 
to  C. ;  now,  if  the  covenants  are  broken,  neither  can 
take  advantage  of  the  condition  of  re-entry,  though 
both  can  sue  upon  the  broken  covenants.  All  this  you 
will  find  laid  down  and  discussed  in  the  judgments  in 
Twynam  v.  Pickard."^ 

Twynam  v.  Pickarcl,  that  it  is  not  necessary  in  order  to  maintain  an 
action  on  the  privity  of  contract  transferred  by  the  32  Hen.  8,  c,  34, 
that  the  entire  interest  in  the  covenant  should  have  passed  to  the 
parties  who  sue.     See  Badeley  v.  Vigurs,  23  L.  J.  Q.  B.  377. 

23  See  also  Co.  Litt.  215  a;  Wright  v.  Burroughes,  3  C.  B.  685, 
(54  E.  C.  L.  R.  685,)  from  which  case  it  appears  that  a  grantee  of 
the  grantor's  reversionary  interest  in  the  whole  of  the  land  may  take 
advantage  of  a  condition,  but  that  a  grantee  of  the  whole  reversionary 
interest  in  part  of  the  land  cannot  do  so. 

(a)  "Van  Rensselear  v.  Gallup,  5  Denio,  454  j  IngcrsoU  v.  Sergeant, 
1  Wh.  337. 


876  LANDLORD    AND    TENANT. 

So  much  with  regard  to  assignments  by  the  act  of 
tlie  parties ;  next  with  regard  to  assignments  by  opera- 
tion of  law.  The  most  common  instances  of  an  assign- 
ment by  operation  of  law  are  those  which  occur  when 
the  lessor  or  lessee  dies  and  his  interest  passes  to  his 
representative  ;  or  where  he  becomes  bankrupt  or  in- 
solvent, and  his  interest  passes  under  the  operation  of 
the  Bankrupt  or  Insolvent  laws. 

"With  regard  to  the  case  of  death,  we  will  first  sup- 
pose the  death  of  the  lessor.  Now,  the  reversion  is 
either  of  a  descendible  quality  and  goes  to  the  heir;  or 
it  is  a  chattel,  and  passes  to  the  executor  or  adminis- 
trator. If  it  descend  to  the  heir,  he  in  every  respect 
represents  his  ancestor,  and  is  bound  by,  and  has  the 
advantage  of,  all  the  conditions  and  covenants ;  Lougher 
V.  Williams,  *2  Lev.  92.^^  And  the  rule  is  the  r*of»oT 
same  with  regard  to  a  personal  representative 

2^  The  general  statement  in  the  text  as  to  the  right  of  the  heir  to 
take  advantage  of  the  covenants  in  the  lease  must  be  understood  to 
relate  to  covenants  which  are  of  such  a  nature  as  to  run  with  the  re- 
version, and  to  breaches  of  covenant  which  occur  after  the  death  of 
the  ancestor.  For,  the  heir  cannot  sue  on  a  merely  collateral  cove- 
nant, which  does  not  run  with  the  reversion,  Fitz.  N.  B.  145  D.  146 
D. ;  Com.  Dig.  Covenant  (B.  2) ;  and  the  general  rule  of  the  common 
law,  that  the  personal  representative  is  the  right  person  to  sue  upon  all 
contracts  with  the  deceased,  broken  in  his  lifetime,  has  been  qualified 
by  the  later  cases  to  this  extent  only, — that  when  the  covenants  are 
real,  that  is  to  say,  run  with  the  land  and  descend  to  the  heir,  the  heir, 
and  not  the  executor,  is  the  proper  plaintiff  if  the  substantial  damage 
has  taken  place  since  the  ancestor's  death,  although  there  may  have 
been  a  formal  breach  in  his  lifetime.  See  Com,  Dig.  Administration 
(B.  13)  Covenant  (B.  1) ;  Kingdon  v.  Nottle,  1  M.  &  S.  355 ;  King 
V.  Jones,  5  Taunt.  418,  (1  E.  C.  L.  K.  219,) ;  Orme  v.  Broughton, 
10  Bing.  533,  (25  E.  C.  L.  K.  254,) ;  Raymond  v.  Fitch,  2  Cr.  M. 
&  R.  588  ;*  and  Ricketts  v.  Weaver,  12  M.  &  W.  718.*  The  right 
of  the  heir,  upon  whom  the  reversion  has  descended,  to  sue  upon  a 


ASSIGNMENT    BY  ACT   OF   LAW.  377 

where  the  *re version  is  transmitted  to  him,   r*9qq-| 
being  of  a  chattel  nature ;  for  he  as  completely 
represents  the  deceased  quoad  the  personalty,  as  the 
heir  does  quoad  the  realty.^^     Next,  suppose  the  death 

covenant  which  runs  with  the  reversion,  does  not,  however,  depend 
upon  his  being  named  in  the  covenant ;  he  may,  in  this  case,  sue  on 
the  covenant  not  only  where  he  is  not  named  in  it,  but  even  where  it 
has  been  made  with  the  ancestor  and  his  executors.  See  Lougher  v. 
Williams,  cited  in  the  text,  in  which  case  it  was  held  that  the  heir 
of  the  lessor  might  sue  the  executors  of  the  lessee  upon  a  covenant  to 
repair,  which  had  been  made  with  the  lessor,  his  executors  and  admin- 
istrators. It  is  not  stated  distinctly  in  the  report,  but  it  must  have 
appeared  in  this  case  that  the  reversion  on  the  lease  had  descended  to 
the  heir.  See  also  Sacheverell  v.  Froggatt,  2  Wms.  Saund.  367  a,  in 
which  case  the  owner  in  fee  had  let  laud  for  years,  and  the  lessee  had 
covenanted  to  pay  the  rent  during  the  term  to  the  lessor,  his  executors, 
administrators  and  assigns,  and  it  was  held  that  the  reservation  was 
good  to  continue  the  rent  during  the  whole  term,  and  that  the  devisee 
of  the  lessor  might  sue  in  covenant  for  so  much  of  it  as  had  become 
due  after  the  lessor's  death.  With  respect  to  the  lidbility  of  the  heir 
of  the  lessor  upon  the  covenants  in  the  lease,  he  appears  to  be  liable, 
whether  named  in  the  covenants  or  not,  upon  all  covenants  that  run 
with  the  reversion  and  are  broken  after  the  death  of  the  ancestor. 
See  Andrew's  Case,  2  Leon.  104,  Anon.  Dyer,  257  a;  and  Coote's 
Landl.  &  Ten.  333.  He  is  not,  however,  liable  in  respect  of  breaches 
committed  by  the  ancestor  in  his  lifetime,  unless  the  covenant  men- 
tions the  heirs ;  and  even  if  this  be  so,  he  is  only  liable  in  respect  of 
Buch  breaches  to  the  extent  of  the  assets  which  he  has  by  descent. 
See  Co.  Litt.  209  a,  Anon.  Dyer,  14  a,  Shep.  Touchst.  178;  Gifford 
V.  Young,  1  Lutw.  287  ;  Dyke  v.  Sweeting,  Willes,  585 ;  and  Buck- 
ley V.  Nightingale,  1  Str.  665. 

2*  The  personal  representative  more  nearly  represents  the  deceased 
quoad  the  personalty  than  the  heir  does  quoad  the  realty ;  for  if  a 
man  binds  himself,  his  executors  are  bound  although  they  be  not 
named ;  but  it  is  otherwise  with  respect  to  the  heir,  as  is  explained 
in  the  last  note.  See  Co.  Litt.  209  a;  Com.  Dig.  Covenant  (C.  1); 
and  Williams  v.  Burrell,  1  C.  B.  402,  (50  E.  C.  L.  R.  402,).  The 
executor  of  the  lessor  may  sue  the  lessee  for  the  breach  of  a  covenant 


378  LANDLORD    AN-D    TENANT. 

of  tlie  lessee ;  in  this  case  the  term,  being  a  chattel 
interest,  vests  in  his  personal  representative.  Now,  it 
is  quite  clear,  that  he  may  be  sued  in  this  Ms  represeiir 
tative  capacity,  for  rent  accruing  due,  or  breach  of 
covenant ;  and  if  he  be  sued  in  his  representative  capa- 
city, he  may,  as  in  any  other  action  brought  against 
him  in  that  capacity,  discharge  liimself  from  liability 
beyond  the  amomit  of  the  assets."''(rt)     But  the  cases 

not  to  fell,  stub  up,  lop  or  top  timber  trees  which,  are  excepted  out  of 
the  demise,  where  the  breach  has  been  committed  ia  the  lifetime  of 
the  testator.  Raymond  v.  Fitch,  2  Cr.  31.  &  R.  588.*  And  the 
executor  of  a  tenant  for  life  may  sue  his  lessee  for  a  breach  of  a  cove- 
nant to  repair  committed  in  the  lifetime  of  the  testator,  without  aver- 
ring any  damage  to  the  personal  estate.  Pticketts  v.  "Weaver,  12  M. 
&  W.  718.^ 

2^  See  Tilney  v.  Xorris,  1  Ld.  Raym.  553 ;  Williams  on  Executors, 
1492  ;  and  the  judgment  in  Wollaston  v.  Hake  will,  3  M.  &  Gr.  320, 
(42  E.  C.  L.  R.  173,). 

(a)  Covenants  of  a  testator  bind  the  executor,  though  not  named. 
Harrison  v.  Sampson,  2  Wash.  (Virginia)  125,  (page  200  of  Phila. 
ed.  of  1823,) ;  Lee  v.  Cooke,  1  ib.  306,  (page  39G  of  Phila.  ed.,) ; 
McCrady  v.  Brisbane,  1  Nott  &  McCord,  104. 

It  has  been  held  in  New  York,  in  the  case  of  Van  Rensselaer  v. 
Platuer,  2  Johns.  Cases,  17,  that  the  executors  and  administrators  of 
a  grantee  in  fee  are  liable  in  covenant  for  the  rent,  when  the  grantee 
has  covenanted  for  himself,  his  executors  and  administrators,  to  pay 
a  rent  in  fee ;  and  in  Pennsylvania  the  same  rule  prevailed  until 
the  recent  case  of  Quain's  Appeal,  10  Harris,  510.  The  Court  in 
that  case,  by  Judge  Lowrie,  argues  as  follows  :  "  Does  a  ground 
rent  covenant  survive  against  executors  and  administrators?  Ia 
its  usual  form  it  binds  heirs,  executors,  administrators  and  assigns ; 
but  still  this  may  be  satisfied  as  to  executors  and  administrators,  if 
they  pay  the  rent  that  accrued  in  the  decedent's  lifetime. 

f' It  is  a  perpetual  covenant,  and  it  is  totally  impracticable  to  require 
it  to  be  performed  by  executors  and  administrators,  for  their  oflSce  is 
not  perpetual.  If  we  retain  the  perpetuity  of  the  covenant,  as  against 
them,  even  with  the  restriction  that  they  are  to  be  liable  only  when 


ASSIGNMENT    BY   ACT    OF   LAW.  379 

of  difficulty  which  arise  happen  when  the  landlord  sues 
the  representative,  not  in  *his  representative  r*qAA-i 
capacity^  hut  as  assignee^  which  he  is,  of  the 
term,  and  seeks  in  that  manner  to  hold  him  personally 
liable.  In  these  cases  the  executor  is  sometimes  placed 
in  a  very  hard  situation :  he  takes  possession  of  pre- 
mises demised  to  the  testator,  and  as  soon  as  he  has 
done  so,  finds  himself  assailed  by  actions  of  covenant 
in  his  personal  capacity  for  damages,  which  the  assets 
in  his  hands  are  quite  inadequate  to  answer.  Now,  if 
the  action  brought  against  him  be  for  rent.,  he  must 
apply  the  whole  profits  of  the  demised  premises  in  pay- 
ment of  it.^^     If  they  produce  no  profit,  or  less  than 

27  The  executor  is  not,  it  would  seem,  bound  to  retain  tlie  profits 
of  the  land,  or  the  purchase-money  of  the  lease,  if  it  be  sold  by  him, 
for  the  purpose  of  satisfying  future  breaches  of  covenant.  See  Colling 
V.  Crouch,  13  Q.  B.  542,  (G6  E.  C.  L.  R.  542,).  In  this  case  the 
executrix  of  the  assignor  of  a  lease  sued  the  executrix  of  the  assignee 
upon  a  covenant  by  the  assignee  to  perform  the  covenants  in  the  lease, 
and  to  indemnify  the  assignor  against  any  breach  of  these  covenants. 
The  defendant  pleaded  plene  admhiistravit,  and  it  was  proved  at  the 
trial  that  all  the  assets,  including  the  amount  received  by  the  defend- 
ant for  the  sale  of  the  lease  to  a  third  person,  had  been  applied  by 
her,  before  the  breaches  of  covenant  complained  of,  in  payment  of 
simple  contract  debts.  It  was  held  that  these  facts  constituted  a 
defence  to  the  action,  although  it  appeared  that  some  of  the  breaches 
of  covenant  were  in  respect  of  the  non-payment  of  rent.  It  must  be 
observed,  however,  that  in  this  case  the  action  was  not  brought  on 
the  covenant  to  pay  rent,  but  on  the  covenant  of  indemnity  made  with 
the  assignor. 

the  resort  to  the  land  is  ineffectual,  we  still  prevent  all  distribution 
of  the  estate  in  their  hands;  and  as  all  the  lands  of  the  decedent  are 
assets  for  the  payment  of  debts,  we  constructively  charge  the  rent 
of  a  single  lot  upon  all  his  lands." 

"  It  is  a  covenant  payable,  in  the  contemplation  of  the  parties,  out 
of  the  profits  of  the  land;  and  it  would  be  entirely  unreasonable  that 


380  LANDLORD    AND    TENANT. 

tlic  rent  due,  and  he  have  no  other  assets,  he  should 
offer  to  surrender  the  lease  to  his  landlord.  And  if  he 
do  all  this,  and  show  that  he  has  done  so  by  a  plea 
properly  framed,  it  seems  pretty  clear  that  he  may  pro- 
tect himself  from  paying  the  residue  out  of  his  own 
r*S01 1  PO^^^t'  ^^^  Billinghurst  v.  *Speerman,  1  Salk. 
'-  -^297;  Buckley  ^7.  Pirk,  1  Salk.  317;  Remnant 
V.  Bremridge,  8  Taunt.  191,  (4  E.  C.  L.  E.  104,) ; 
Rubery  v.  Stevens,  4  B.  i&  Ad.  241,  (24  E.  C.  L.  R. 
112,).^^  But  if  he  be  sued  for  the  breach  of  any  cove- 
nant other  than  that  to  pay  rent,  it  seems  very  doubtful 
whether  he  can  protect  himself  by  any  plea,  if  he  have 
once  taken  possession  of  the  premises.  See  Tremeere 
V.  Morison,  1  Bing.  N.  C.  89,  (27  E.  C.  L.  R.  556,) ; 
Hornidge  v.  Wilson,  3  Per.  &  Dav.  641 ;  [S.  C.  11  A. 
&  E.  645,] ;  (39  E.  C.  L.  R.  186,).  His  best  and  only 
safe  course  is  to  make  inquiry  into  the  value  of  the 
term  before  he  in  any  way  deals  with  it  as  oAvner ;  and 

28  See  Wolkston  v.  Hakewill,  3  M.  &  Gr.  297,  (42  E.  C.  L.  R. 
161,).  It  appears  from  this  case  that  the  executor  may  be  sued  as 
assignee,  whether  he  enter  or  not,  but  that  if  he  is  no  otherwise 
assignee  than  by  being  executor,  he  may  discharge  himself  from  per- 
sonal liability  by  pleading  this  fact,  and  by  alleging  that  the  term  is 
of  no  value,  and  that  he  has  fully  administered  all  the  assets  which 
have  come  to  his  hands.  If  the  executor  of  a  lessee  for  years  enters, 
he  is,  in  the  absence  of  other  assets,  liable  de  honis  propriis,  for  the 
rent  reserved,  to  the  extent  to  which  he  might,  by  the  exercise  of 
reasonable  diligence,  have  derived  profit  from  the  premises.  Hopwood 
V.  Whaley,  6  C.  B.  744,  (60  E.  C.  L.  R.  744,). 

the  law  should  hold  the  administrator  for  the  rent,  when  it  gives  the 
land  to  the  heir." 

This  is  new  doctrine  in  Philadelphia,  where  it  has  been  long  the 
practice  in  such  case  to  sue  the  executors  or  administrators  on  the 
covenant,  restricting  the  judgment  to  the  lands  out  of  which  the  rent 
issued. 


ASSIGNMENT    BY   ACT   OF   LAW.  381 

if  its  sufficiency  in  point  of  value  turn  out  to  be  doubt- 
ful, not  to  take  to  it  at  all.  By  this  course  it  would 
seem — from  the  judgment  of  the  Court  of  Common 
Pleas  in  Wollaston  v.  Hakewill,  3  M.  &  Gr.  297,  (42 
E.  C.  L.  R.  161,) — that  he  may  protect  himself  from 
liability  beyond  the  extent  of  his  assets,  in  respect  of 
breaches  of  covenant.  An  executor  or  administrator 
may,  however,  like  any  other  assignee,  assign,  and  will 
not  be  personally  liable,  for  any  breach  of  covenant 
committed  subsequently  to  his  doing  so.  Taylor  v. 
Shum,  1  B.  &  P.  21.(a) 

*With  regard  to  the  case  of  bankruptcy  or  r*oQ9-i 
insolvency ;  the  assignee  as  he  becomes  en- 
titled to  the  bankrupt's  whole  estate,  may  if  he,  please, 
take  possession  of  a  term  for  years,  if  that  be  part  of 
the  estate.  But,  as  the  assignee's  estate  is  given  him 
for  the  benefit  of  the  creditors,  and  as  it  would  be 
obviously  no  benefit  to  them  if  the  assignee  were  to  be 
saddled  with  a  lease,  the  rent  reserved  on  which  might 
be  more  than  its  value,  the  assignee  has,  it  is  held,  an 
option  whether  he  will  take  a  lease  of  the  bankrupt's 
or  not ;  and  may  refuse  it  if  he  think  proper ;  Cope- 
land  V.  Stephens,  1  B.  &  A.  593.  And  that  the  assig- 
nees may  make  their  election  Avith  their  eyes  open, 
they  are  allowed  to  make  all  proper  inquiries  and  ex- 
periments for  that  pui-pose.  Turner  v.  Richardson,  7 
East,  335  ;  but  no  more,  otherwise  they  will  render 
themselves  liable;  Hastings  v.  Wilson,  Holt,  290,  (3 


(a)  In  a  case  in  Massachusetts,  it  is  said :  "  Where  a  lessee  of 
lands,  demised  to  him,  his  heirs  and  assigns,  for  a  term  of  years,  dies 
before  the  end  of  the  term,  his  administrator  becomes  assignee  of  the 
term  in  law,  and  is  liable  on  the  covenants  in  the  lease  until  he  is 
lawfully  discharged  of  the  estate."    Montague  v.  Smith,  13  Mass.  405. 


382  LANDLORD    AND    TENANT. 

^oAo-,  E,  C.  L.  R.  120,)-^  If  *they  accept  the  lease 
they  stand  in  the  position  of  an  ordinary  as- 
signee ;  if  they  refuse  it,  the  tenant  formerly  remained 
liable  upon  the  covenants  notwithstanding  his  bank- 
ruptcy ;  but  now,  by  the  75th  section  of  the  Bankrupt 

2^  See  also  as  to  what  acts  are  sufficient  to  render  the  assignees 
liable,  Hanson  v.  Stevenson,  1  B.  &  A.  303 ;  Page  v.  Godden,  2 
Stark.  309,  (3  E.  C.  L.  E.  422,) ;  Welch  v.  Myers,  4  Camp.  368 ; 
and  Ausell  v.  Robson,  2  Cr.  &  J.  610.*  In  Clark  v.  Hume,  Ry.  & 
Moo.  207,  (21  E.  C.  L.  R.  733,)  the  assignee  of  a  bankrupt,  who 
was  chosen  in  the  month  of  November,  kept  the  bankrupt  upon  the 
premises,  carrying  on  the  business  for  the  benefit  of  the  creditors  until 
the  April  following,  and  came  frequently  himself  to  inspect  the  busi- 
ness, and  furnished  the  bankrupt  with  money  for  the  purpose  of 
carrying  it  on ;  and  the  accounts,  which  were  kept  by  the  bankrupt, 
were  transmitted  by  him  every  week  to  the  assignee.  About  a  year 
after  the  bankruptcy  the  assignee  disclaimed  the  lease  in  a  letter  to 
the  landlord.  It  was  held,  under  these  circumstances,  that  he  was 
liable,  as  assignee  of  the  lease,  notwithstanding  the  disclaimer.  In 
Carter  v.  Warne,  Moo.  &  Malk.  479,  a  question  arose  at  Nisi  Prius 
in  a  somewhat  analogous  case.  In  this  case  the  assignees  of  a  debtor's 
property  under  an  assignment  for  the  benefit  of  his  creditors,  were 
sued  as  the  assignees  of  a  lease  belonging  to  him.  It  appeared  that 
at  the  time  of  the  execution  of  the  assignment  to  the  assignees  they 
were  ignorant  of  the  existence  of  the  lease,  but  that  afterwards  they 
had  put  it  up  for  sale.  Lord  Tenterden  directed  the  jury  that  the 
assignees  were  entitled  to  put  up  the  lease  for  sale  in  order  to  ascer- 
tain whether  it  could  be  made  beneficial,  but  that  if  they  had  dealt 
with  the  estate  as  their  own,  or  done  anything  with  it  that  was 
injurious  to  the  owner,  they  had  rendered  themselves  liable  as  assig- 
nees of  the  lease.  See  also  How  v.  Kennett,  3  A.  &  E.  659,  (30  E. 
C.  L.  R.  305,).  Where  the  assignees  actually  occupy  the  premises, 
they  may  be  sued  for  use  and  occupation.  See  Gibson  v.  Courthope, 
1  Dow.  &  Ry.  205,  (16  E.  C.  L.  R.  33.) ;  Clarke  v.  Webb,  1  Cr.  M. 
&  R.  29;*  and  How  v.  Kennett,  cited  above.  They  may,  after 
accepting  the  lease,  get  rid  of  any  future  liability  for  rent  by  assign- 
ing over;  even  though  it  be  to  an  insolvent  person.  Onslow  v. 
Corrie,  2  Mad.  330. 


ASSIGNMENT    BY  ACT  OF   LAW.  383 

Act,  6  Geo.  4,  c.  16,  he  may,  within  fourteen  days  after 
the  assignees  have  declined,  get  rid  of  his  own  hability 
by  dehvering  the  lease  up  to  his  immediate  landlord  ; 
and  if  they  will  neither  accept  nor  decline,  he  may 
petition  the  Lord  Chancellor.^°(a) 

3°  The  6  G-eo.  4,  c.  16,  was  repealed  by  the  Bankrupt  Law  Consoli- 
dation Act,  1849,  the  12  &  13  Vic.  c.  106,  which  is  the  Bankrupt 
Act  now  in  force.  The  145th  section  of  the  present  ac^  corresponds 
with  the  75th  section  of  the  earlier  act.  By  this  section  it  is  enacted 
"  that  if  the  assignees  of  the  estate  and  eflPects  of  any  bankrupt  having 
or  being  entitled  to  any  land  either  under  a  conveyance  to  him  in  fee 
or  under  an  agreement  for  any  such  conveyance,  subject  to  any  per- 
petual yearly  rent  reserved  by  such  conveyance  or  agreement,  or 
Laving  or  being  entitled  to  any  lease  or  agreement  for  a  lease,  shall 
elect  to  take  such  land  or  the  benefit  of  such  conveyance  or  agreement, 
or  such  lease  or  agreement  for  a  lease,  as  the  case  may  be,  the  bank- 
rupt shall  not  be  liable  to  pay  any  rent  accruing  after  the  issuing  of 
the  fiat  or  filing  of  the  petition  for  adjudication  of  bankruptcy  against 
him,  or  to  be  sued  in  respect  of  any  subsequent  non-observance  or 
non-performance  of  the  conditions,  covenants,  or  agreements  in  any 
such  conveyance  or  agreement,  or  lease  or  agreement  for  a  lease;  and 
if  the  assignees  shall  decline  to  take  such  land,  or  the  benefit  of  such 
conveyance  or  agreement,  or  lease  or  agreement  for  lease,  the  bank- 
rupt shall  not  be  liable  if,  within  fourteen  days  after  he  shall  have 
had  notice  that  the  assignees  have  declined,  he  shall  deliver  up  such 
conveyance  or  agreement,  or  lease  or  agreement  for  lease,  to  the 
person  then  entitled  to  the  rent,  or  having  so  agreed  to  convey  or 
lease,  as  the  case  may  be ;  and  if  the  assignees  shall  not  (upon  being 
thereto  required)  elect  whether  they  will  accept  or  decline  such  land 
or  conveyance  or  agreement  for  conveyance,  or  such  lease  or  agree- 
ment for  a  lease,  any  person  entitled  to  such  rent,  or  having  so  con- 
veyed or  agreed  to  convey,  or  leased  or  agreed  to  lease,  or  any  person 
claiming  under  him,  shall  be  entitled  to  apply  to  the  Court,  and  the 
Court  may  order  them  to  elect  and  deliver  up  such  conveyance  of 

(m)  Bosler  v.  Kuhn,  8  W.  &  S.  183 ;  Lansing  v.  Pendergast,  9 
Johns.  127  ;  Steinmitz  v.  Ainslie^  4  Denio^  573  ;  Prentiss  v.  King- 
ley,  10  Barr,  120. 


384  LANDLORD    AND    TENANT. 

r*'^n4-l        *This  section  of  the  Bankrupt  Act  however, 

only  applies  to  cases  arising  between  the  origi- 

[  305]   nal  lessor  *and  the  original  lessee ;  and  there 

agreement  for  conveyance,  or  lease  or  agreement  for  lease,  in  case 
they  shall  decline  the  same,  and  the  possession  of  the  premises,  or 
may  make  such  other  order  therein  as  it  shall  think  fit."  In  Briggs 
V.  Sowry,  8  M.  &  TV.  729,*  the  assignees  of  a  bankrupt  had,  under 
the  6  Geo.  4,  c.  16,  s.  75,  declined  a  lease  to  which  the  bankrupt 
was  entitled,  but  the  bankrupt  had  not  delivered  up  the  lease  to  the 
lessor.  It  was  held,  under  these  circumstances,  that  the  property  in 
the  demised  premises  continued,  in  the  mean  time,  vested  in  the  bank- 
rupt, and  that  the  lessor  retained,  until  such  delivery  up  to  him,  his 
right  of  distress  for  the  rent.  And  the  Court  expressed  an  opinion, 
although  it  was  not  necessary  to  decide  the  point,  that  the  efiect  of 
this  section  of  the  6  Geo.  4,  c.  16,  was  only  to  exempt  the  bankrupt 
from  personal  liability,  and  not  to  affect  the  right  of  the  landlord  to 
distrain.  See  also  as  to  the  construction  of  s.  75  of  the  6  Geo.  4,  c. 
16.  Slack  V.  Sharpe,  8  A.  &  E.  366,  (35  E.  C.  L.  R.  408,) ;  and 
the  notes  to  Auriol  v.  Mills,  1  Smith's  L.  C.  456.  It  is  provided  by 
s.  129  of  the  12  &  13  Vic.  c.  106,  that  no  distress  for  rent  made  and 
levied  after  an  act  of  bankruptcy  upon  the  goods  or  efi"ect3  of  any 
bankrupt  (whether  before  or  after  the  issuing  of  the  fiat  or  the  filing 
of  the  petition  for  adjudication)  shall  be  available  for  more  than  one 
year's  rent  accrued  prior  to  the  date  of  the  fiat  or  the  filing  of  the 
petition  ;  but  that  the  person  to  whom  the  rent  is  due  shall  be  allowed 
to  come  in  as  a  creditor  for  the  overplus  of  the  rent  due,  and  for 
which  the  distress  shall  not  be  available.  See  as  to  the  construction 
of  the  corresponding  section  in  the  6  Geo.  4,  c.  16,  Briggs  v.  Sowry, 
cited  above.  But  the  certificate  does  not  operate  as  a  release  of  the 
rent  due  before  the  bankruptcy,  and  cannot  be  set  up  in  answer  to  a 
subsequent  distress.  See  Newton  v.  Scott,  9  M.  &  W.  434  ;*  S.  C. 
10  M.  &  W.  471  ;*  and  ante,  p.  164,  note.  "Where  persons  employed 
in  husbandry  upon  land  let  to  farm,  become  bankrupt,  their  assignees, 
and  all  purchasers  from  them,  are  bound  to  dispose  of  the  hay,  straw, 
grasses,  and  other  produce  of  the  land,  and  of  the  manure,  &c.,  in- 
tended for  and  being  on  the  land,  in  the  manner  and  for  the  purposes 
to  which  the  bankrupts  would  have  been  bound  to  apply  them  if  the 
bankruptcy  had  not  happened.  See  the  12  &  13  Vic.  c.  106,  s.  144; 
and  the  56  Geo.  3,  c.  50,  s.  11,  cited  ante,  p.  151,  note. 


ASSIGNMENT   BY   ACT   OF   LAW.  385 

are  therefore  many  cases  still,  in  which  if  the  assignees 
refuse  the  lease,  the  tenant  remains  hable  to  the 
rent  and  covenants  notwithstanding  his  bankruptcy. 
See  Manning  v.  Flight,  3  B.  &  Ad.  211,  (23  E.  C.  L. 
E.  100,);  Taylor  v.  Young,  3  B.  &  A.  521,  (5  E.  C. 
L.  R.  302,). 

The  1  &  2  Vic.  c.  110,  s.  50,  contains  similar  provi- 
sions with  regard  to  leases  belonging  to  insolvents,^^ 

31  This  section  of  the  1  &  2  Vic.  c.  110,  enacts  that  "  in  all  cases 
in  which  any  such  prisoner  shall  be  entitled  to  any  lease  or  agreement 
for  a  lease,  and  his  assignee  or   assignees  shall  accept  the  same,  and 
the  benefit  thereof,  as  part  of  such  prisoner's  estate  and  effects,  the 
said  prisoner  shall  not  be  or  be  deemed  to  be  liable  to  pay  any  subse- 
quent rent  to  which  his  discharge,  adjudicated  according  to,  this  act, 
may  not  apply,  nor  be  in  any  manner  sued  after  such  acceptance  in 
respect  or  by  reason  of  any  subsequent  non-observance  or  non-per- 
formance of  the  conditions,   covenants,   or  agreements  therein  con- 
tained :  provided  that  in  all  such  cases  as  aforesaid  it  shall  be  lawful 
for  the  lessor,  or  person  agreeing  to  make  such  lease,  his  heirs,  execu- 
tors, administrators,  or  assigns,  if  the  said  assignee  or  assignees  shall 
decline,  upon  his  or   their  being  required  so  to  do,  to  determine 
whether  he  or  they  will  or  will  not  accept  such  lease  or  agreement  for 
a  lease,   to  apply  to  the  said  Court,  praying  that  he  or  they  may 
either  so  accept  the  same,  or  deliver  up  such  lease  or  agreement  for  a 
lease,  and  the  possession  of  the  premises  demised  or  intended  to  be 
demised ;  and  the  said  Court  shall  thereupon  make  such  order  as  in 
all  the  circumstances  of  the  case  shall  seem  meet  and  just,  and  such 
order  shall  be  binding  on  all  parties."     By  two  later  acts,  the  5  &  6 
Vic.  c.  116,  and  the  7  &  8  Vic.  c.  96  (usually  called  the  Protection 
Acts),  relief  has  been  given  to  insolvent  persons  who  are  either  not 
traders  within  the  meaning  of  the  Bankrupt  Acts,  or  who,  if  such 
traders,  owe  debts  amounting  to  less  than  three  hundred  pounds ;  and 
they  may  obtain  protection  under  these  statutes,  although  they  are 
not  in  custody.     The  latter  of  these  acts  contains  a  provision  with 
respect  to  leases  belonging  to  persons  seeking  protection  under  them, 
which  is  similar  to  that  contained  in  s.  50  of  the  Insolvent  Act.     See 
B.  12.     The  jurisdiction  created  by  the  Protection  Acts  was  originally 

vested  in  the  Court  of  Bankruptcy,  but  by  the  10  &  11  Vic.  c.  102, 

25 


386  LANDLORD    AND    TENANT. 

r*'^on    ®^<^^pt  ^^^^J  ^^^^^  tl^®  petition  under  *that  act 
is  to  the  Insolvent  Debtors'  Court,  not  to  the 
Chancellor,  (rt) 

s.  4,  it  lias  been  transferred  to,  and  is  now  exercised  by  the  Insolvent 
Court  in  London,  and  the  County  Courts  constituted  under  the  9  & 
10  Vic.  c.  95.  It  must  be  observed,  that  as  the  discharge  of  the 
tenant  under  the  Insolvent  Act  does  not  extinguish  the  rent  which 
became  due  before  the  insolvency,  although  it  protects  his  person 
against  any  proceedings  in  respect  of  it,  the  landlord  may  distrain 
after  the  insolvency  for  rent  which  became  due  before  the  discharge. 
Phillips  V.  Shervill,  6  Q.  B.  9M,  (51  E.  C.  L.  K.  944,). 

(o)  It  is  sometimes  made  a  question,  on  the  sale  of  the  term  by 
the  sheriff,  on  an  execution  against  the  lessee,  whether  arrears  of  rent 
are  a  lien,  so  as  to  be  discharged  by  the  sale,  and  the  landlord  turned 
over  to  the  proceeds.  It  was  early  held  in  Pennsylvania,  that  in 
cases  of  groimd  rent  reserved  on  a  conveyance  of  the  fee,  when  the 
deed  contained  a  clause  of  re-entry  hi/  which  the  land  itself  might  be 
seized,  that  in  such  cases  the  arrears  constituted  a  lien,  and  were  pay- 
able out  of  the  fund  produced  by  the  sale,  but  without  interest. 
Bantleon  v.  Smith,  2  Binn.  146  ;  Pancoast's  Appeal,  8  W.  &  S.  381 ; 
Dougherty's  Estate,  9  W.  &  S.  189  ;  Terhoven  v.  Kerns,  2  Barr,  96. 
In  the  case  of  Sands  v.  Smith,  3  W.  &  S.  9,  which  was  a  conveyance 
of  the  fee,  reserving  a  rent  payable  for  one  hundred  years,  with  clause 
of  distress,  but  without  the  right  to  re-enter,  and  hold  the  land  for 
arrears,  it  was  held  that  the  arrears  were  not  such  a  lien  as  would  be 
discharged  by  the  sheriff's  sale,  and  payable  out  of  the  purchase- 
money,  but  that  the  landlord  might  distrain  for  the  arrears,  notwith- 
standing the  sale.  And  in  the  late  case  of  Sibley  v.  Celt,  or  Spangler's 
Appeal  (not  yet  in  the  Reports),  but  to  be  found  in  12  Legal  Intelli- 
gencer, p.  351,  paper  of  12th  December,  1855,  Judge  Lowrie  says,  "The 
defendants  were  lessees  of  certain  contiguous  coal  mines,  at  a  rent  per 
ton,  payable  monthly,  enforceable  by  action  by  distress,  and  also  by 
a  stipulated  right  to  re-enter  and  forfeit  or  annul  the  lease  for  arrears, 
without  thereby  discharging  the  lessees  from  their  personal  liability. 
This  leasehold  estate  was  taken  in  execution  at  the  suit  of  the  plain- 
tiff, and  sold,  the  lessees  being  considerably  in  arrears  for  rent,  and 


ASSIGNMENT    BY   ACT    OF   LAW.  387 

this  raises  the  question,  had  the  lessors  such  a  lien  upon  the  estate  of 
the  lessees,  as  is  discharged  by  the  sheriff's  sale  ?" 

"  We  are  of  opinion  that  the  present  case  falls  precisely  within  the 
principle  of  Bantleon  v.  Smith,  that  the  right  of  entry  constitutes  a  lien 
for  the  rent  in  arrears — that  the  right  to  exercise  it,  for  these  arrears, 
was  taken  away  by  the  sheriff's  sale,  and  that  the  lessors  are  entitled 
to  share  in  the  distribution." 

It  should  have  been  mentioned  in  the  chapter  on  distress  for  rent 
— that  interest  on  arrears  cannot  be  recovered  by  distress.  Bantleon 
V.  Smith,  2  Binney,  153 ;  Blake  v.  Delisseline,  4  McCord,  496 ;  Lan- 
sing V.  Rattoone,  6  Johns.  43  ;  Dennison  v.  Lee,  6  Gill.  &  Johns.  383; 
Vechte  v.  Brownell,  8  Paige,  212. 


INDEX. 


ABANDONMENT  OF  DISTRESS. 

what  is  not,  166.  \ 

ABUSE  OF  DISTRESS. 

effect  of,  at  common  law,  171. 

alteration  of  common  law  rule  by  statute  171,  176,  180,  181. 

tender  of  amends,  181. 
ACCEPTANCE  OF  RENT. 

effect  of,  in  creating  a  yearly  tenancy,  22,  65,  66. 

of  new  lease,  when  a  surrender  of  old,  225 — 230. 

when  a  waiver  of  forfeiture,  109,  113,  114. 

when  a  waiver  of  a  notice  to  quit,  240. 
ACTION,  see  Covenant,  Ejectment,  Remedies. 

by  tenants  in  common,  49,  50,  51. 

by  joint  tenants,  52. 

on  leases,  138,  139. 

for  rent  arrear,  138. 

for  use  and  occupation,  139. 

abolition  of  forms  of,  by  the  Common  Law  Procedure  Act 
(1852),  139,  176,  181. 

cannot  be  brought  for  damage  done  by  accidental  fire,  199. 

of  waste,  204. 

on  case,  in  nature  of  waste,  205. 

for  non-repair  and  non-cultivation,  204, 

against  executors,  299 — 301. 

against  heir,  298. 
ACCIDENTAL  FIRE,  see  Fire. 
ACT  OF  GOD,  see  Waste. 

when  tenant  not  liable  for,  194,  195. 
ACTUAL  ENTRY  ON  LAND,  see  Entnj. 

lessee  cannot  bring  trespass  before,  13,  14. 

use  and  occupation  will  not  lie  before,  13. 

by  landlord,  on  determination  of  tenancy,  242. 

by  executor  of  lessee,  effect  of,  301 
ADMINISTRATORS,  see  Executors. 

leases  by,  47. 

right  of,  to  emblements,  250. 


390  INDEX. 

ADVERSE  POSSESSION,  see  Limitation,  Statutes  of. 

since  the  3  &  4  Win.  4,  c.  27 ;  19,  20,  27,  162,  163,  216, 
217,  218. 
AGENT. 

to  make  leases,  within  Statute  of  Frauds,  65. 

to  execute  deeds,  66. 

payment  of  rent  to,  127. 

of  joint  tenants,  notice  to  quit  by,  237. 
AGREEMENT,  see  Lease. 

stamps  on,  72. 

eifect  of  Statute  of  Frauds  on,  22,  65,  66,  74,  76. 

difference  between,  and  leases,  62,  69,  70,  71. 

rules  for  distinguishing  between,  71,  72. 

equitable  right  of  tenant  to  have  a  lease,  73. 

for  a  lease,  cannot  be  by  parol  only,  75. 

when  custom  of  country  can  be  annexed  to  written,  203,  258. 

as  to  emblements,  256. 

as  to  fixtures,  275. 
AGRICULTURAL  FIXTURES,  see  Fixtures, 
ANNUITY. 

apportionment  of,  136. 

eifect  of  surrender  on,  231. 
ALIENS. 

leases  to,  56. 

old  law  with  respect  to,  56. 

rights  of,  under  7  &  8  Vic.  c.  66 ;  57. 

may  now  take  by  grant  or  lease  for  twenty-one  years,  57. 

may  hold  personal  property,  57. 

naturalization  of,  57. 
ALIENS  ENEMY. 

cannot  sue,  57. 

contracts  with,  invalid,  57. 
ALLODIAL  PROPERTY. 

subjects  cannot  hold,  2. 
ANIMALS. 

in  a  wild  state,  not  distrainable,  148. 
ANVILS. 

when  exempt  from  distress,  143. 
APPORTIONMENT  OF  RENT,  see  Rent. 

on  death  of  tenants  for  life,  36. 
in  other  cases,  133. 

when  it  could  be  made  at  common  law,  134. 

never  in  respect  of  time,  134 

by  statute,  134. 

under  11  Geo.  2,  c.  19,  and  4  &  5  Wm.  4,  c.  22;  134—137. 
eifect  of  statutes,  137,  138. 
they  do  not  apply  where  lease  is  not  in  writing,  187. 


INDEX.  391 

APPORTIONMENT  OF  ^ENT. —  Contmued. 

nor  between  personal  representative  and  heir,  137. 
they  extend  to  tithe  rent-charge,  137. 
•when  tenant  is  allowed  by  statute  an  extended  occupation  in 
lieu  of  emblements,  138,  248. 

when  land  taken  under  Lands  Clauses  Consolidation  Act,  138. 

under  Church  Building  Acts,  138. 
when  there  is  an  eviction  of  part  of  premises,  212,  213. 
APPRAISEMENT,  see  Distress,  Sale. 
of  distress,  178. 
how  done,  178.  \ 

number  of  appraisers,  179. 
swearing  of  them,  179. 
when  rent  does  not  exceed  201,  179. 
competency  of  appraisers,  180. 
ASSIGtNEES,  see  Assignment,  Bankmptcy,  Executors. 

of  bankrupts,  when  liable  on  leases,  302,  303,  304. 

sale  by,  of  hay,  straw,  &c.,  on  land  of  bankrupt, 

151,305. 
liability  of,  for  use  and  occupation,  303. 
naay  get  rid  of  liability  by  assigning  over,  303. 
of  insolvents,  when  liable  on  leases,  305,  306. 

sale  by,  of  hay,  straw,  &c.,  on  land  of  insolvent, 
151. 
ASSIGNMENT. 

of  choses  in  action,  185,  278,  282. 
of  estates  in  land,  62,  279. 

when  must  be  by  deed,  62,  282. 
conditions  against,  115,  116. 
eflPect  of  licence  to  assign,  117. 
covenant  against,  116. 

not  broken  by  assignments  by  operation 
of  law,  115,  116. 
when  it  runs  with  land,  118,  290. 
by  act  of  parties,  279, 

how  effected,  279,  281,  282. 
by  landlord,  280. 
attornment,  280. 
effect  of  4  Anne,  c.  16;  280. 
notice  to  tenant  of,  281. 
when  premises  mortgaged,  281. 
by  tenant,  281. 

effect  of  Statute  of  Frauds,  and  8  &  9  Vic.  c.  106  ;  281,  282. 
consequences  of,  282. 

at  common  law,  282—284,  285. 
since  the  32  Hen.   8,  c.  34  -,  284. 
construction  of  statute,  285. 


392  INDEX. 

ASSIGN3IENT.—  Continued. 

it  only  applies  to  leases  by  deed,  285,  294. 

what  covenants  run  with  land  and  reversion,  286 — 291. 

they  must  concern  the  thing  demised,  286. 

implied  covenants,  287. 

express  covenants,  288. 

eifect  of  "  assigns"  being  mentioned,  289 — 292. 

position  of  assignor  and  assignee,  292,  293. 

lessee  still  liable  on  express  covenants,  293. 

otherwise  with  respect  to  assignee,  294,  303. 

assignee,  after  assignment,  not  liable  for  future  breaches, 

295. 
even  though  assignment  to  a  pauper,  or  married  woman,  294. 
liability  of  assignee  to  lessee,  295. 
of  part  of  land,  295. 

of  reversion,  296. 
of  reversion  in  part  of  land,  296. 
conditions  not  apportionable,  297. 
by  act  of  law,  297. 
by  death  of  lessor,  279. 

rights  and  liabilities  of  his  heir,  297,  298. 
when   liable   to   be   sued, 

298,  299. 
when  entitled  to  sue,  298. 
rights  and  liabilities  of  his  executor,  298, 
299. 

when  liable  to  be  sued,  299. 
when  entitled  to  sue,  299. 
by  death  of  lessee,  299. 

liability  of  his  executor  299 — 301. 

on  covenant  to  pay  rent,  300. 

on  other  covenants,  300,  301. 

when    sued    as    executor, 

299,  300. 

when   sued    as    assignee, 

300,  301. 
by  bankruptcy,  802. 

right  of  assignees  to  elect  to  take  lease,  302, 
when  bound  to  elect,  304. 
how  far  they  may  deal  with  it,  302. 
they  are  liable  if  they  occupy,  303. 
delivery  up  of  lease  by  bankrupt,  303. 
right  to  distrain  not  affected,  304,  305. 
rights  of  assignees  over  hay,  straw,  &c.,  305. 
by  insolvency,  305. 

assignees  must  elect  to  take  or  refuse  lease,  305. 
when  bound  to  do  so,  305. 
eff"ect  of  Protection  Acts,  306. 


INDEX.  393 

ASSURANCP],  see  Insurance.  ' 

ATTORNMENT. 

at  common  law,  280. 

now  done  away  with,  280,  281. 
AUCTIONEER. 

distress  on  goods  in  hands  of,  146,  147. 

when  he  may  sue  employer  for  money  paid,  132. 
AUTHORITY,  see  Bailif. 

to  distrain,  when  it  authorises  receipt  of  rent,  165. 
AVOWRY. 

what  it  is,  183. 

hy  tenants  in  common,  52.  ^ 

by  joint  tenants,  52. 

for  forehand  rent,  159. 

for  rent  at  common  law,  161. 

for  a  payment  which  is  not  strictly  a  rent,  162. 

may  be  for  one  rent,  and  distress  for  another,  165. 
AWAY-GOING  CROP,  see  Crops. 

BAILIFF,  see  Distress. 

warrant  to,  164. 

authority  of,  to  distrain,  163,  164,  165. 
to  receive  the  rent,  165. 

liability  of  landlord  for  acts  of,  181. 

ratification  by  landlord  of  acts  of,  164,  165. 

may  justify  under  authority  of  person  to  whom  rent  is  in  fact 
due,  165. 

acting  for  joint  tenants,  237. 
BANKRUPTCY,  see  Assignees. 

effect  of  proviso  that  lease  shall  be  void  in  case  of,  115,  116, 
117,  252. 

effect  of,  on  right  to  distrain,  164,  304,  305. 

effects  of  on  liability  of  lessee,  303,  304. 
BARN. 

when  not  a  fixture,  271. 
BEASTS  OF  PLOUGH,  see  Cattle. 

when  privileged  from  distress,  149. 
BIIL  OR  NOTE. 

effect  of  taking,  in  payment  of  rent,  128,  129. 
BOND. 

effect  of  giving,  for  rent,  128. 

does  not  suspend  right  to  distrain,  129. 

in  replevin,  184,  185. 

condition  of,  184. 
how  broken,  184,  185. 
BOOKS. 

when  privileged  from  distress,  149. 


394  INDEX. 

BOTE,  see  Fire-hote,  llouse-hofe,  Phugh-hote. 

BREACH,  see  Covenant,  Forfeiture. 

BREAKING  OPEN  OF  DOORS,  see  Distress,  Door. 

BROKER. 

liability  of  landlord,  for  acts  of,  in  distraining,  181. 
BUILDING  LEASES. 

by  ecclesiastical  persons,  40. 
BUILDINGS. 

erected  for  purposes  of  trade  and  agriculture,  when  removable, 
267—272. 

CANALS. 

leases  of,  by  ecclesiastical  persons,  40. 
CARPETS. 

when  distrainable,  144. 

are  tenant's  fixtures,  267. 
CARRIAGE. 

standing  at  livery,  distress  on,  147. 
CASKS. 

when  privileged  from  distress,  147. 
CATTLE. 

when  distrainable,  148,  149,  156. 

when  belonging  to  guests  at  an  inn,  148. 

when  on  commons,  1.56. 

when  driven  off  land  to  avoid  a  distress, 

153,  154. 
liability  to  provide  food  for,  when  distrained, 
173. 

sale  of,  for  expenses,  174. 
CESTUI  QUE  TRUST. 

ejectment  by  and  against,  220. 
CHATTELS,  see  Distress. 

right  of  husband  over  wife's  real  and  personal,  41. 

difference  between,  and  fixtures,  144. 

what  pass  to  executor,  144. 

when  privileged  from  distress,  141 — 156. 
CHEQUE, 

payment  of  rent  by,  127. 
CHIMNEY-PIECES. 

when  tenant's  fixtures,  265,  267. 
CHOSES  IN  ACTION. 

when  assignable,  185,  278,  282. 

enforcement  of  assignment  of,  by  Courts  of  Equity,  278. 
CHURCH  BUILDING  ACTS. 

apportioniuent  of  rent  when  land  taken  under,  138. 
CHURCHWARDENS  AND  OVERSEERS,  see  Parish  Officers. 


INDEX.  395 

CLANDESTINE  REMOVAL,  see  Fraudulent  Removal. 
of  goods,  to  avoid  distress,  154. 

CLOTH. 

at  a  tailor's  privileged  from  distress,  145. 

COLLATERAL  COVENANTS. 

do  not  run  with  land  or  reversion,  286,  298. 

COMMON,  TENANTS  IN,  see  Tenants  in  Common 

COMMONS. 

cattle  on,  belonging  to  premises,  when  distrainable,  156. 

CONDITION,  see  Forfeiture,  Re-entry.  ^ 

precedent,  15,  96,  106,  201,  210. 
subsequent,  15,  107. 
implied,  105,  206. 

from  relation  of  landlord  and  tenant,  105,  130,  196, 

206,  207. 
by  common  law,  105. 

by  statue  law,  106.  , 

of  re-entry,"  108,  111,  112. 
waiver  of,  109. 

by  receipt  of  rent,  109,  113,  114. 
by  distress,  114,  115. 
by  other  acts,  109. 
not  to  assign,  115.  * 

how  broken,  115,  116. 
eflPect  of  licence  to  assign,  116. 
distinction  between  conditions  not  to  assign  and  not  to,  underlet, 

118. 
effect  of  receipt  of  rent  after  breach  of  condition  not  to  assign, 
119. 

after   breach    of  condition   not   to 
underlet,  119. 
none  implied  as  to  state  of  premises  on  a  letting,  206. 
not  apportionable,  297. 

CONFIRMATION. 

of  leases  by  tenants  in  tail,  31. 
by  tenants  for  life,  36. 
under  powers,  45. 
by  infants,  48.  ^ 

to  infants,  53. 

CONSERVATORY. 

when  not  removable  by  tenant,  267. 
when  removable  as  a  trade  fixture,  268. 

CONSTABLE. 

attendance  of,  before  breaking  open  doors,  in  cases  of  fraudulent 
removal,  170. 


396  INDEX. 

CONSTRUCTION. 

of  covenants,  50,  51,  52,  96. 
of  notices  to  quit,  237,  238. 
COPYHOLDS. 

leases  of,  not  within  Enabling  Statute,  83. 
consent  of  lord  to  ecclesiastical  leases  of,  39,  40. 
not  within  the  59  Geo.  3,  c.  12 ;  52. 
surrenders  of,  224. 
CORN,  see  Crops. 

when  exempt  from  distress,  147. 
CORPORATION. 

yearly  tenancy,  when  implied  against,  38. 
service  of  notice  to  quit  on,  240. 
COSTS. 

on  nonsuit  in  replevin,  186. 
COUNTRY,  see  Custom  of  Countnj. 
COUNTY  COURTS. 

proceedings  in,  in  replevin,  183. 

removal  of  proceedings  in  replevin  from,  183,  185. 

proceedings  in,  under  Small  Tenements  Acts,  243. 

jurisdiction  of,  in  such  cases,  244. 
proceedings  in,  to  recover  double  value  of  premises  held  over, 
245. 
COVENANT. 

when  implied,  96,  97,  105,  106,  207,  287. 

not  from  use  of  words  <'give"  or  "grant,"  68, 208,  288 
no  particular  words  necessary  to  make,  96. 
statutory  forms  of,  67,  97. 
how  construed,  50,  51,  96,  97. 
when  independent,  97,  201. 
when  joint  or  several,  49,  50,  51,  52. 
when  construed  according  to  interest,  50,  51. 
what  are  covenants  in  law,  287,  293. 

in  deed,  293. 
difference  between  implied  covenants  and  covenants  in  law,  287, 

293. 
when  covenants  run  with  land,  102,  207,  286—291. 
with  reversion,  102,  286—291. 
when  not  made  with  owner  of  legal  estate, 

289. 
effect  of  'i  assigns  "  being  mentioned,  289 
—292. 
right  of  heir  to  sue  on  covenants  in  lease  of  ancestor,  297,  298. 
of  executor,  298,  299. 

liability  of  heir  on,  298,  299. 

of  executor  or  lessor,  299. 

of  executor  or  lessee,  299 — 301. 


INDEX.  397 

COVENANT.— Continued. 

married  women  not  liable  on,  55. 

actions  of,  by  tenants  in  common,  49,  50 — 52. 

by  joint  tenants,  52. 
effect  of  non-execution  of  lease  by  covenantee,  97- 
covenants  usually  inserted  in  leases,  94,  97. 

to  pay  rent,  96,  125. 

to  pay  taxes,  &c.,  98,  99. 

to  pay  tithe  rent-charge,  98. 

to  insure,  100, 

not  to  carry  on  particular  trades, 

101. 
for  quiet  enjoyment,  102, 206, 208. 
not  to  assign,  116. 

effect  of  license  on, 

117. 
does  not   run  with 
Eand,  11^ 
to  repair,  199—201. 

how  construed,  200. 
meaning  of  term   "go<3d 

repairs,"  200. 

how  far  age  of  premises 

can  be  referred  to,  200, 

what  are  conditions  pre- 

I  cedent    to   liability  of 

tenant,  200,  201. 
liability  of  tenant  to  re- 
build  after   fire,   201, 
202. 
damages   recoverable  on, 

201. 
when  term  still  unexpired, 

201. 
when  a  lease  and  a  sub- 
lease, and  a  lessee  has 
been  sued  by  superior 
landlord,  201  202. 
whether  costs  of  first  ac- 
tion recoverable,  202 
to  repair  after  notice,  201, 
an  independent 
covenant,  201. 
fco  keep  in  repair,  2U0. 
for  quiet  enjoyment,  207 
214. 
runs  with  laud,  207. 


398  INDEX. 

COVENANT.—  Continued. 

for  title,  207. 
against   eviction,    212 — 
214. 
CEOPS. 

growing,  when  distrainable,  149,  176,  177. 
statute  as  to,  149. 

if  seized  in  execution  how  they  must  be  sold,  150,  151, 
distress  on,  seized  by  sheriif,  150. 
if  tenant  bankrupt  or  insolvent,  how  they  must  be  sold, 

151,  305. 
growing  trees,  not  within  statute  as  to,  152. 
landlord  not  obliged  to  resort  to,  before  distraining 

articles  conditionally  privileged,  152. 
mode  of  distraining,  177. 
impounding  of,  177. 
sale  of,  150,  179. 
way-going,  256. 

right  to,  256. 

under  custom  of  country,  256 — 258,  261. 
when  custom  can  be  incorporated  with  lease,  203, 
258—261. 
CKOWN.       . 

all  real  property  ultimately  held  of,  2. 

tenancy  at  suflferance  cannot  exist  against,  25. 

may  reserve  a  rent  out  of  an  incorporeal  hereditament,  94. 

may  distrain  ofi"  demised  premises,  94,  153. 

diflPerence  between  grants  of,  and  those  of  subjects,  94. 

CULTIVATION. 

rights  of  landlord  with  respect  to,  203,  204. 

when  provisions  as  to,  can  be  engrafted  on  a  yearly  tenancy, 

74,  203. 
effect  of  custom  of  country  on,  256 — 260. 
contracts  as  to,  when  they  run  with  land,  290. 

CURTAINS. 

not  fixtures,  144. 

CURTESY,  TENANT  BY 
leases  by,  6,  41. 
waste  by,  191. 

CUSTODY  OF  LAW. 

goods  in,  not  distrainable,  148. 

CUSTOM  OF  COUNTRY,  see  Emhhments. 

how  cultivation  of  the  premises  affected  by,  203,  256 — 262. 

as  to  seeds,  tillage,  manure  &c.,  258 — 261. 

to  what  tenancies  applicable,  261. 

when  it  can  be  incorporated  with  lease,  203,  257 — 261. 


INDEX.  399 

CUSTOM  OF  COVl^^TBY. —  Contimied. 

not  when  lease  is  expressly  or  impliedly  inconsistent  with 

it,  203,  257—261. 
instances  of  application  of  rule,  258 — 261. 
as  to  way-going  crops,  256,  261. 
right  of  tenant  to  sue  landlord  on,  261. 
effect  of,  on  right  to  remove  fixtures,  270,  275. 

DAMAGE  FEASANT. 

what  may  be  distrained,  149. 

goods  distrained,  cannot  be  distrained  for  rent,  148. 

DAMAGES,  see  Repairs. 

recoverable  on  a  covenant  to  repair,  201,  202. 

DATE. 

of  leases,  77,  78,  83. 

deeds  take  effect  from  delivery,  not  from  date,  88. 

effect  of  reference  in  lease  to  its  date,  83,  84. 

to  day  of  date,  83,  84. 
effect  of  insertion  of  impossible  date,  83. 

DAY. 

distress  must  be  in  day-time,  159. 

DAY  OF  DATE,  see  Date. 

DEATH,  see  Assignment. 
of  lessor,  297. 

effect  of,  297. 

rights  and  liabilities  of  his  heir,  297,  298. 

of  his  executors,  298,  299. 
of  lessee,  299. 

effect  of,  299. 

liability  of  his  executor,  299 — 301. 
DEAN  AND  CHAPTER,  see  Ecclesiastical  Persons. 

DEDUCTIONS. 

that  tenant  may  make  from  rent,  129. 
claims  paid  to  superior  landlord,  129. 
principal  of  rule,  130. 
effect  of  claims  by  a  mortgagee,  130. 
of  threat  of  distress  by  superior  landlord,  132. 
mode  of  claiming,  in  replevin,  180. 
deduction  of  land-tax  from  rent,  138.    ' 
of  income  tax,  133. 
of  tithe  rent-charge,  133. 

DEEDS,  see  Lease. 

when  leases  must  be  by,  60,  62,  63. 
when  surrenders,  224. 
when  assignments,  281,  282. 
'     agent  cannot  execute,  unless  appointed  by  deed,  66. 


400  INDEX. 

DEEDS.— Continued. 

takes  effect  from  delivery,  83. 

effect  of  taking,  as  security  for  rent,  129. 

when  custom  of  country  affects  a  holding  by,  57. 

DEER. 

when  distrainable,  148. 

DEMAND. 

of  rent,  in  order  to  create  a  forfeiture,  125. 
when  a  waiver  of  forfeiture.  111. 
when  a  waiver  of  notice  to  quit,  111,  241. 

DEMISE,  see  Lease,  Rent. 

effect  of  joint,  by  tenants  in  common,  50. 

proper  words  of,  67. 

of  incorporeal  hereditaments,  92. 

effect  of  legality  as  to  part  of,  92. 

no  warranty  implied  on,  as  to  condition  of  premises,  206. 

when  contract  for  title  implied  on,  207. 

covenant  implied  from  use  of  word,  207. 

DENIZENS,  see  Aliens. 
leases  to,  56. 
rights  of,  56,  57. 
DESERTION  OP  PREMISES,  see  Vacant  Possession. 
DETERMINATION,  see  Halendum,  Lease. 
of  tenancy,  86,  215—240. 

distress  after,  160. 

points  relating  to,  215. 

modes  in  which  it  may  take  place,  215,  216. 

by  effluxion  of  time,  216. 

landlord's  right  to  possesion,  216,  241  242. 
adverse  possession   since  the  3  &  4  Wm.  c. 
27 ;  19,  20,  27, 162, 163,  216—221. 
by  surrender,  222 — 233. 
by  forfeiture,  233. 
by  disclaimer,  233. 
by  note  to  quit,  234 — 241. 
rights  of  landlord  on,  241 — 276. 
rights  of  tenant  on,  247 — 276. 
DETINUE. 

for  goods  distrained,  176. 

DILAPIDATIONS,  see  Waste. 
DISABLING  STATUTES. 

effects  of,  on  leases,  37. 

DISCLAIMER. 

what  it  is,  233,  234. 

when  it  causes  a  forfeiture,  233. 

not  when  by  mere  word  of  mouth,  234. 
waiver  of,  234. 


INDEX.  401 

DISTRESS,  see  Warrajit. 

for  American  cases,  see  note  pp.   147,  148,  154,  161,  170, 

174,  177,  179. 
by  tenants  in  comon,  52. 
by  joint  tenants,  52. 
by  Parish  Officers,  52. 
diflference  between,  and  execution,  143. 
for  what  rents  it  may  be  made,  88. 
for  rents-seek,  89,  90. 
for  free-farm  rent,  89. 

for  rent-service,  90.  ^ 

by  Crown,  94, 

search  for,  before  re-entry,  under  4  Geo.  2,  c.  28 ;  120. 
right  of,  not  suspended  by  taking  a  bond  for  rent,  129. 
■what  may  be  distrained,  141. 

general  rule  as  to  chattels  personal,  141. 
exceptions  to  this  rule,  142. 
things  absolutely  protected,  142. 
fixtures,  142, 

extent  of  rule  as  to,  143. 

degree  of  annexation  necessary,  143 ,  144 

reason  of  exemption  of,  143. 

anvils,  143. 

lime-kilns,  143. 

kitchen  ranges,  &c.,  143. 

grates,  143. 

granaries,  143. 

millstones,  143, 

machinery,  143,  144. 

looms,  141. 

stocking  frames,  143. 

carpets  not  fixtures,  144. 

nor  looking-glasses,  144. 

nor  curtains,  144. 

liability  of  landlord  for  taking,  144, 145.  ^ 

trover  for,  145. 
things  privileged  for  advantage  of  trade,  145. 

horse  in  a  smith  shop,  145. 

cloth  at  a  tailor's,  145. 

goods  at  a  factor's,  145. 

goods  at  an  auctioneer's,  146,  147. 

beasts  sent  to  a  butcher  to  be  slaughtered, 
140. 

corn  at  a  mill,  147. 

silk  at  a  weaver's,  147. 

goods  at  a  commission  agent's,  147. 

carriage  at  agent's,  147. 
2G 


402  INDEX. 

DISTRESS—  Continued. 

carriage,  &c.,  at  livery,  not  protected. 

147. 
casks  at  a  public  house,  147. 
things  privileged  because  in  actual  use,  147. 
tools  being  used,  147. 
horse  being  ridden,  147. 
other  things  privileged,  147. 

animals  in  a  wild  state,  148. 
bucks  and  does,  148. 
dogs,  148. 

cattle  which  escape,  148. 
goods  in  custody  of  law,  148. 
cattle  and   goods  of  guests  at  an 
inn,  148. 
things  conditionally  protected  against,  149. 
beasts  of  plough,  149. 
sheep,  149. 

instruments  of  husbandry,  149. 
implements  of  trade,  149. 
books,  149. 
on  growing  crops,  149,  150,  177. 

when  they  may  be  sold,  150. 
damages  recoverable  if  they  are  sold 

before  ripe,  150. 
landlord  not  obliged  to  resort  to,  before 
articles  conditionally  privileged,  152. 
on  growing  crops  that  have  been  seized  in  execution,  150. 
on  sheaves  and  stacks  of  corn,  &c.,  150. 

how  seized  and  sold,  150,  151. 
hay  and  straw  seized  under,  cannot  be  sold  to  be  con- 
sumed on  premises,  152. 
where  the  landlord  may  distrain,  152,  153. 
on  demised  premises,  153. 
not  on  highway,  153. 
exception  with  respect  to  Crown,  94,  153. 
other  exceptions,  153. 

cattle  driven  off  land  to  avoid  distress,  153,  154. 
on  goods,  fraudulently  removed,  154 — 156,  168,  169. 
when  distrainable,  154,  168. 
when  removal  not  clandestine,  154. 
not  if  sold  to  a  bond  fide  purchaser,  154,  169. 
within  what  time  it  must  be  made,  154. 
act  only  applies  to  tenant's  own  goods,  155, 168. 
summary  proceedings  before  justices,  154. 
whether  rent  must  not  only  be  due  but  in  arrear, 

155,  170. 
pleas  justifying  seizure,  155. 


INDEX.  403 

DISTRESS—  Continued. 

when  doors  may  be  broken  open,  155,  170. 
landlord  must  still  have  reversion,  170. 
on  cattle  on  commons  and  ways  belonging  to  premises,  156. 
when  landlord  may  distrain,  158. 

not  till  rent-day  is  over,  158. 
forehand  rent,  158. 

rent  payable  by  custom  in  advance,  159. 
between  sun-rise  and  sun-set,  159. 
after  expiration  of  tenancy,  160. 
effect  of  8  Anne,  c.  14;  160,  161. 

where  it  applies,  161. 
landlord's  interest  and  tenant's  pos- 
session must  continue,  160. 
where  tenant  retains  only  part  of 

premises,  160. 
where   possession  continued  under 

custom  of  country,  161. 
act  does  not  apply  where'  tenancy 
ended  by  disclaimer,  161. 
after  notice  to  quit,  240. 
cannot  be  made  unless  rent  certain,  161,  162. 
may  be  made,  on  a  tenancy  at  will,  162. 
by  agreement,  where  reservation  is  not  a  rent,  162. 
landlord  must  have  a  reversion,  162. 
limitation  in  time  on  right  of,  162,  163. 
second  distress,  when  allowed,  163,  164. 
effect  of  Bankrupt  Acts  on  right  of,  164,  304. 
of  Insolvent  Act,  164,  306. 
how  landlord  may  distrain,  162. 
in  person  or  by  bailiff,  163. 
warrant  of  distress,  164. 

how  it  should  be  framed,  164. 
effect  of,  165. 

authority  of  bailiff  under,  165. 
ratification  by  landlord  of  bailiff's  acts,  164, 
165,  outer  door  must  be  open,  165. 

meaning  of  this  rule,  165,  166. 
exception  in  cases  of  fraudulent  re- 
moval, 155,  165,  170. 
seizure,  166. 

what  is  an  abandonment  after,  166. 
of  goods  fraudulently  removed,  168,  169. 
inventory,  166. 

how  it  should  be  framed,  167. 
notice,  166. 

how  it  should  be  framed,  107,  108. 
must  be  in  writing,  167. 


404  INDEX. 

DISTRESS—  Contimied. 

want  of,  does  not  render  distress  invalid,  168. 
effect  of  mistake  in,  as  to  amount  of  rent  due,  168. 
wbat  landlord  must  do  with,  171. 
his  power  at  common  law,  171. 
eff"ect  of  abuse  of  distress,  171. 
when  he  became  a  trespasser  ah  initio,  171,  172. 
duty  of  landlord,  at  common  law,  as  to  impounding,  172, 
173. 
he  was  not  bound  to   feed  cattle  impounded, 
172,  173. 
statutory  alterations  of  power  of  landlord,  173,  174. 

liability  to  provide  food  for  cattle  distrained, 

io. 
right,  under  statute,  to  recover  value  of  food, 

174. 
right  of  landlord  to  sell  cattle  for  expenses,  174. 
what  landlord  is  entitled  to  retain  on  a  sale,  174. 
right  to  impound  on  premises,  174,  175. 
what  constitutes  an  impounding,  176. 
effect  of  tender  of  rent,  176. 
remedy  if,  notwithstanding  tender,  landlord  dis- 
trains, 176. 
whether  trespass  will  lie,  176. 
impounding  of  growing  crops,  177. 
appraisement,  178,  179.  / 

number  of  appraisers,  179. 
how  sworn,  179. 
sale,  178, 179. 

when  it  may  be  made,  178. 
disposal  of  overplus,  178. 
when  excessive,  181. 
when  a  waiver  of  forfeiture,  114,  115. 
when  a  waiver  of  notice  to  quit,  240. 
search  for,  before  ejectment  to  recover  premises,  120. 
DISTURBANCE. 

remedies  of  tenant  for,  205 — 214. 
DOGS. 

whether  distrainable,  148. 
DOMAIN  EMINENT. 

exercise  of  right  of,  not  a  breach  of  covenant  of  warranty, 
211,  n.  213,  n. 
DOOR. 

outer,  cannot  be  broken  open  to  distrain,  165. 
may  be  opened  by  ordinary  means,  165. 
when  it  may  be  broken  open  to  distrain  goods  fraudulently 
removed,  155,  170. 


INDEX.  405 

DOUBLE  KENT. 

when  tenant  liable  for,  245. 
proceedings  to  recover,  246. 
what  notices  to  quit  are  sufficient  to  entitle  landlord  to,  246. 

DOUBLE  VALUE. 

when  tenant  liable  for,  244. 

not  where  fair  claim  of  right,  245. 

proceedings  for,  244,  245. 

may  be  brought  in  County  Court,  245. 

not  applicable  to  a  weekly  tenancy,  245; 
demand  and  notice  to  give  up  possession,  245. 

how  framed,  245. 

when  insufficient,  245. 
how  estimated,  245. 

DOWER. 

tenant  in,  6. 

assignment  of,  6. 

waste  by  tenant  in,  191.  ' 

ECCLESIASTICAL  PERSONS. 
leases  by,  37,  40. 

under  Enabling  Statute,  37. 

when  they  bind  successors,  37,  38. 
effect  of  Disabling  Statutes  on,  37,  38. 

effect  of  non-compliance  with  statutes,  38. 
when  a  tenancy  from  year  to  year  arises,  38. 
renewal  of  lease  by,  38. 
farming  lease  by,  38. 

when  they  may  be  granted,  38, 
restrictions  upon,  38,  39. 
building  lease  by,  40. 
lease  of  water-leaves,  40. 
way-leaves,  40. 
canals,  40. 
railways,  40. 
mines,  40. 

EFFLUXION  OF  TIME,  see  Determination. 

EJECTMENT. 

origin  of  action,  9,  10. 

now  commenced  by  writ,  10. 

formerly  damages  only  recoverable  in,  11. 

extension  of  judgment  in,  to  term,  11. 

not  waived  by  a  distress,  115. 

proceedings  in,  when  right  to  re-enter  for  non-payment  of  rent, 
120. 


406  INDEX. 

EJECTMENT.— Cbn^Miwef?. 

right  to  bring,  how  affected  by  Statutes  of  Limitation,  19,  20, 
162,  163,  216—221. 

ELECTION,  see  Assignees,  BanJcruptci/,  Insolvency,  Option. 

by  assignees  of  bankrupt  or  insolvent  to  accept  lease,  302 — 306. 
EMBLEMENTS,  see  Custom  of  Country. 
American  Law  of,  258,  n. 
what  they  are,  20,  247—256. 
when  extended  occupation  allowed  by  statute,  in  lieu  of,  138, 

248,  249,  251. 
princij)le  of  right  to,  20,  248. 
on  what  estates  they  may  be  claimed,  248,  249. 
estates  of  uncertain  duration,  249,  250. 
tenancies  for  life,  250. 
terms  for  years,  250. 
tenancies  at  will,  250,  251. 
by  widow,  249. 
by  husband,  250. 
by  executors,  250. 
by  incumbent  of  a  living,  250. 
by  tenants  by  statute-merchant,  251. 
when  they  may  be  claimed,  249 — 253. 

when  estate  determines  by  act  of  law, 

249,  250,  252. 
not  when  it  determines  by  act  of  tenant, 
251,  252. 
out  of  what  they  may  be  claimed,  253 — 255. 

only  out  of  such  things  as  yield 

an  annual  profit,  253 — 255. 
out  of  hemp,  &e.^  253. 

other  matters,  253,  354. 
not  out  of  trees,  253. 

or  grass,  253. 
entry  to  take,  20,  256,  261. 

rights  of  person  entering,  256,  261. 
effect  of  custom  of  country  on  claims  to,  256-262. 
EMINENT  DOMAIN. 

exercises  of  right  of,  not  a  breach  of  covenant  of  warranty,  211, 
n,  213,  n. 
ENABLING  STATUTE. 
leases  under,  33,  37. 
what  persons  are  within,  37. 
ENROLLMENT. 

of  leases  by  tenants  in  tail,  85. 
ENTRY,    see    Actual  Entry,  Interesse    Termini,  Re-entry,    Tears 
tenant  for. 
lessee  cannot  bring  trespass  before,  13,  14. 
by  personal  representative  of  lessee,  13. 


INDEX.  407 

ENTRY.— Conitmied. 

use  and  occupation  will  not  lie  before,  13. 

right  of  not  assignable,  108. 

by  landlord  on  determination  of  tenancy,  242. 

when  he  is  punishable  for  a  forcible  entry,  242. 
to  take  emblements,  20,  256. 

by  mortgagee  on  land,  effect  of,  281. 

by  executor  of  leases,  effect  of  301. 

EQUITY,  see  Injunction. 

when  Court  of,  will  restrain  waste,  197,  204,  205. 
relieve  against  forfeiture,  116. 
enforce  assignment  of  a  chose  in  action,  278. 

ESCHEAT. 

of  property  held  by  tenant  in  fee  simple,  5. 
mortgage  and  trust  property  will  not  escheat,  5. 

ESTOPPEL. 

leases  by,  32. 

effect  of  recitals  in  creating,  78,  79,  80. 

by  acknowledgment  in  a  deed  of  receipt  of  money,  81. 

if  indorsed  on  deed,  no  estoppel,  81. 
when  tenant  estopped  to  dispute  landlord's  title,  81,  245. 
on  surrender  by  operation  of  law,  228. 

ESTOVERS. 

what  they  are,  190. 

right  of  tenants  of  particular  estates  to,  190. 

taking  of,  by  tenant  for  life,  not  waste,  194. 

EVICTION. 

what  amounts  to,  210,  211,  212. 

implied  guarantee  by  landlord,  against,  210. 

extends  to  acts  of  landlord,  210. 

and  of  persons  claiming  under  him, 

210. 
but  not  to  acts  of  strangers,  211. 
of  part  of  premises  causes  suspension  of  whole  rent,  212. 

but  tenant  not  discharged  from  covenants,  ex- 
cept that  for  payment  of  rent,  212. 
apportionment  of  rent,  when  eviction  by  title  paramount,  212, 

213, 
express  contracts  against,  212 — ^214.^ 

how  broken,  213. 
EXCESSIVE  DISTRESS;  see  Distress. 
EXCEPTION. 

distinction  between,  and  reservation,  91, 103, 104. 

out  of  demise,  103. 

of  trees  and  woods,  103,  104. 


408  INDEX. 

EXECUTION. 

difference  between,  and  distress,  143. 

growing  crops  seized  under,  liable  to  distress,  150. 

landlords  right  to  a  year's  rent,  out  of  147,  n. 

EXECUTORS. 

leases  by,  47. 

underleases  by,  47. 

one  of  them  may  lease,  47. 

leases  by,  when  good  as  against  specific  legatees,  47. 

what  chattels  pass  to,  144. 

when  entitled  to  emblements,  2.50. 

rights  and  liabilities  of  executor  of  lessor,  298,  299. 

liability  of  executor  of  lessee,  299 — 301. 

as  executor,  299,  300. 

as  assignee,  300,  301. 

effect  of  entry  by,  301. 

when  liable  for  rent,  300. 

on  other  covenants,  301. 
EXPIRATION   OF   TENANCY,   see  Determination,  Eahendum, 
Lease. 

FACTOR. 

goods  in  possession  of,  when  privileged  from  distress,  145. 

FARMING  LEASES. 

by  ecclesiastical  persons,  38. 
when  they  may  be  made,  38. 
restrictions  on,  38,  39. 
under  5  &  6  Vic.  c.  27 ;  38,  39. 
FEE-FARM  RENT,  see  Rent. 

FEE-SIMPLE,  TENANT  IN. 

nature  of  tenancy,  5. 

when  he  holds  from  Crown,  5. 

effect  of  Statute  of  Quia  Emptor es  on  tenancy,  5. 

escheat  of  land  held  by,  5. 

rights  of,  over  land,  189. 
FEE-TAIL,  see  Tail,  tenant  in. 

FEME  COVERT,  see  Ea&hand  and  Wife,  Married  Women. 
FEOFFMENTS. 

no  longer  operate  tortiously,  32. 

transfer  land  by,  at  common  law,  42. 

must  now  be  evidenced  by  deed,  62. 

FINES  AND  RECOVERIES  ACT. 
requisites  of  leases  under,  35. 
enrolment  of,  35. 
FIRE,  see  Use  and  Occujiation,  Waste. 


INDEX.  409 

FIRE. —  Continued. 

liability  of  tenant  for  rent  when  premises  have  been  destroyed 

by,  140,  202. 
liability  of  tenant  for,  in  waste,  at  common  law,  195. 
for  accidental  fire,  198,  n. 

express  contracts  as  to,  198,  200. 
bow  aifected  by  statute,  198,  199. 
when  fire  caused  by  negligence,  199. 
of  tenant  to  rebuild  after,  201,  202. 
FIRE-BOTE,  see  House-Bote. 

what  it  is,  190.  ' 

FIXTURES,  see  Distress,  Trover. 

what  are,  142,  143,  144,  262—271. 
common  law  rule  as  to  annexations  to  freehold,  262,  263. 
relaxation  of  rule,  264. 
not  distrainable,  142,  143,  144,  181,  267. 
degree  of  annexation  necessary,  in  order  to  exempt  from  dis- 
tress, 143,  144,  263. 
liable  to  be  taken  in  execution,  144,  145. 
trover  for,  145,  273,  274. 
liability  of  landlord,  if  broker  distrains,  181. 
right  to  remove  where  no  tenancy,  263. 
right  of  tenant  to  remove  where  no  express  agreement,  262. 
tenants  and  ornamental  fixtures,  264,  265. 

what  are,  265—267. 
rules  for  determining,  266. 
landlord's  fixtures,  267. 
trade  fixtures,  267. 

what  are,  267—270. 
rules  for  determining,  269,  270. 
wider  rule  with  respect  to,  267,  268,  269. 
agricultural  fixtures,  270. 
machinery,  270. 
■V  buildings  and  machinery  erected  for  purposes  of 

trade  and  agriculture,  270,  271,  272. 
how  removable,  272. 
month's  notice  of  intention,  272. 
right  of  landlord  to  elect  to  buy,  272. 
valuation  of,  272. 
when  removal  must  take  place,  272 — 274. 
before  expiration  of  tenancy,  272. 
or  during  continuance   of   possession  as  tenant, 
273,  274. 
right  of  tenant  to  remove  where  express  agreement,  274. 
effect  of  custom,  270,  275. 
valuation  of,  275. 


10  INDEX. 

FIXT  ORES—  Continued. 

effect  of  special  contracts  between  landlord  and  tenant,  as  to, 
275. 
FOOD,  see  Impounding. 

liability  to  provide,  for  cattle  distrained,  173. 
FORCIBLE  ENTRY,  see  Entri/,  2i2.  n. 
HAND  RENT. 
what  it  is,  158. 
distress  for,  158. 
EITURE. 
bj  commission  of  treason  or  felony,  105. 
by  alienation  in  mortmain,  106. 
by  disclaimer,  233,  234. 
by  assertion  of  title,  234,  n. 
waiver  of,  109. 

by  receipt  of  rent,  109 — 114. 
by  demand  of  rent,  111. 
by  distress,  114,  115. 
by  other  acts,  109. 
effect  of  election  by  landlord  to  treat  lease  as  forfeited,  110. 

of  breach  being  continuing,  110. 
when  Court  of  Equity  will  not  relieve  against,  116. 
determination  of  tenancy  by,  233. 
FRAUDS,  see  Statute  of  Frauds. 
FRADULENT  RE:sIOV^AL,  see  Distress,  Seizure. 

distress  on  goods  fraudulently  removed,  154,  156,  168, 

effect  of  statute,  154,  168,  170. 
cannot  be  made  after  a  hona  fide  sale,  154,  169. 

or  after  landlord  has  parted  with  reversion,  170. 
within  what  time  it  must  be  made,  154. 
can  only  be  made  on  tenant's  own  goods,  155,  168. 
summary  proceedings  before  justices,  154. 
whether  rent  must  be  not  only  due.  but  in  arrear,  155, 170. 
breaking  open  of  doors,  155,  170. 
seizure  of  goods  in  cases  of,  168,  169. 
FREEHOLD,  see  Fixtures. 
annexation  to,  262. 

FREEHOLD  TENANCIES,  see  Fee-simple,  tenant  in;   Curtesetj, 
tenant  hy  ;  Life,  tenant  for  ;   Tail,  tenant  in. 

different  kinds  of,  5,  7. 
FROM. 

meaning  of  word,  85. 

FURNISHED  APARTMENTS. 

whether  any  implied  condition  on  letting  of,  206. 

FURTHER  ASSURANCE. 

covenant  for,  runs  with  land,  288. 


INDEX.  411 

FUTURE  LEASE. 

effect  of  stipulation  for,  18,  69 — 71. 

GIVE. 

no  covenant  fmplied  from  use  of  word,  68,  208. 

GLEBE  LAND,  see  Parsons. 

GLOUCESTER,  STATUTE  OF,  see  Statutes. 

GOODS  FRAUDULENTLY  REMOVED,  see  Distress,  Fraudulent 

Removal. 
GRAND  SERJEANTY,  see  Serjeant!/. 
GRANT. 

things  wliicli  lie  in,  58. 

construed  most  strongly  against  grantor,  86. 

no  covenant  implied  from  use  of  word,  68,  208,  288. 

effect  of,  by  Crown,  9i. 
GRANARIES. 

when  fixtures,  143. 
GRASS,  see  Grojjs,  EmUements.  , 

GRATES. 

exemption  of,  from  distress,  143,  267. 

GREENHOUSE,  see  Conservatonj. 
GROUND  RENT,  see  Deductions. 

sub-lessee  who  pays,  when  entitled  to  deduct  from  his  rent, 
129. 
GROWING  CROPS,  see  Crops. 
GUARDIANS  IN  SOCAGE. 

leases  by,  46. 
GUARDIANS  TESTAMENTARY,  see   Testamentary  Guardians. 

HABENDUM. 

office  of,  82 

may  explain,  but  not  contradict  the  premises,  82. 

its  operation  as  a  grant  is  prospective  only,  83. 

limits,  duration  of  term,  83. 
HAY,  see  Straw. 
HEIR. 

rights  and  liabilities  of,  on  lease  of  ancestor,  297,  298. 

on  what  covenants  he  may  sue,  297,  298. 

by  what  covenants  he  is  bound,  298,  299. 

HEIR  LOOMS. 

destruction  of,  when  waste,  192. 

HEREDITAMENTS. 

leases  of  incorporeal,  01,  92. 

rent  cannot  issue  from,  92. 


413  li^DEX. 

HIGHWAY. 

distress  on,  153,  156. 

of  cattle  on,  belonging  to  premises,  156. 
HERBAGE. 

reservation  of  not  a  rent,  91. 
HOLDING  OVER,  see  Year  to  Year. 
HORSES,  see  Cattle. 

■when  privileged  from  distress,  145,  147. 
HOUSEBOTE. 

what  it  is,  190. 

right  to,  190. 
HUSBAND  AND  WIFE,  see  3Iarried  Woman. 

leases  by  husband  of  wife's  land,  40,  41. 

how  rent  should  be  reserved,  41. 

effect  of  husband's  dealing  with  wife's  chattels  real,  41. 

he  must  reduce  choses  in  action  into  possession,  41. 

■when  husband  entitled  to  emblements,  250. 
HUSBANDRY,  see  Cultivation. 

instrument  of,  when  privileged  from  distress,  149. 

IDIOTS. 

leases  by,  47. 

leases  of  property  of,  by  Court  of  Chancery,  47. 

effect  of  contracts  with,  47,  48. 

binding,  when    no   advantage  taken  of 
lunatic,  48. 
IMPLIED  CONDITIONS,  see  Conditions. 
IMPLIED  COVENANTS,  see  Covenants. 
IMPEACHMENT  OF  WASTE,  see  Waste. 

leases  by  tenants  in  tail,  must  not  be  without,  34. 

effect  of  demise  without,  204. 

DIPOUNDING,  see  Distress. 
what  is,  172 — 176. 
effect  of  tender  of  rent  before,  176, 
common  law  duty  of  landlord  with  respect  to,  172. 
duty  and  rights  of  landlord  by  statute,  173 — 175. 
liability  to  provide  food  for  cattle  after,  173. 
when  it  may  be  on  premises,  175. 
of  growing  crops,  177. 

INC03IE  TAX,  see  Deductions. 

deduction  of,  from  rent,  133. 

when  it  must  be  made,  133. 

contracts  between  landlord  and  tenant  as  to,  99,  100. 
IN-COMING  TENANT,  see  Custom  of  Country. 
INCORPOREAL  HEREDITAMENTS,  see  Hereditaments. 
INFANTS. 

leases  by,  48,  49. 


INDEX.  413 

INFANTS—  Continued. 

whether  void  or  voidable,  48. 
lease  of  lands  belonging  to,  by  Court  of  Chancery,  49. 
leases  to,  53. 

effect  of  disagreement  to,  at  full  age,  53,  54. 
liability,  of  for  necessaries,  54. 
meaning  of  term  necessaries,  55. 
liability  of  for  rent  of  lodgings,  54,  55. 
INJUNCTION. 

when  grantable,  to  restrain  waste,  197,  204,  205. 
by  Courts  of  common  law,  205. 
INN. 

distress  of  goods  in,  148. 

INSOLVENCY,  see  Assignees. 

effect  of  proviso  making  lease  void  in  case  of,  115,  116, 252. 
effect  of,  on  right  to  distrain,  164,  306. 
effect  of,  on  liability  of  lessee,  305,  306. 
INSURANCE,  see  Re-entry. 

covenant  to  insure,  100. 
bow  broken,  100. 
when  breach  continuing,  100,  110. 
when  it  runs  with  land,  289. 

INTEPvESSE  TERMINI,  see  Entry,  Years,  tenant  for. 
what  is,  13. 

before  entry  trespass  cannot  be  brought,  13. 
how  extinguished,  13. 

by  a  release,  13. 

by  an  assignment,  13. 
will  not  merge  in  freehold,  13. 

INTEREST  ON  RENT. 

effect  of  receipt  of,  129. 

INVENTORY,  see  Distress. 
on  a  distress,  166. 
how  framed,  167. 
description  of  goods  seized  in,  167. 

IMPLEMENTS  OF  TRADE,  see  Distress. 
IRREG-ULAR  DISTRESS,  see  Remedies. 

ISSUE  IN  TAIL. 

leases  when  good  against,  35. 

JOINT-TENANTS. 

leases  by,  49. 

how  they  operate,  49,  237. 
whether   they  must  sue  jointly  or   separately  on  covenants, 
49-52. 


414  INDEX. 

JOINT-TENANTS—  Continued. 
distress  by,  52. 
how  they  must  avow,  52. 

effect  of  severance  of  reversion  on  leases  by,  52. 
warrant  of  distress  by,  164. 
notice  to  quit  by,  237. 
service  of  notice  to  quit  on,  239. 

JUDGMENT. 

in  ejectment,  9 — 11. 

in  actions  for  detention  of  chattels,  182. 

in  replevin,  185. 

KING-,  see  Croion. 

all  property  ultimately  held  of,  2. 

difference  between  grants  of,  and  those  of  subjects,  94. 
KITCHEN  RANGES. 

exemption  of,  from  distress,  143,  267. 

LAND. 

no  implied  warranty  on  the  letting  of,  206. 

LANDLORD,  see  Distress,  Rent. 
rights  of,  124. 

against  persons  other  than  the  tenant,  124,  n. 
as  to  payment  of  rent,  125. 
as  to  repairs,  189 — 202. 
as  to  cultivation,  203,  204. 

on  determination  of  tenancy,  241 — 246,  248 — 276. 
LANDLORD  AND  TENANT,  see  Lessors,  Lessees. 
meaning  of  terms,  3. 

what  duties  are  implied  from  relation,  105,  130,  196,  206, 
207. 
LANDLORD'S  FIXTURES,  see  Fixtures. 

LANDS  CLAUSES  CONSOLIDATION  ACT. 

apportionment  of  rent,  when  land  taken  under,  138. 

LAND  TAX,  see  Deductions. 

when  tenant  may  deduct,  133. 
LExVSE,  see  Covenant,  Lessors,  Lessees. 

what  may  be  leased,  57. 

offices  that  concern  administration  of  justice  may  not,  57. 

of  things  lying  in  grant,  58. 

of  things  lying  in  livery,  58. 

stamps,  on,  73. 

by  tenants  in  fee,  31. 

by  tenants  in  tail,  31,  32. 

by  tenants  for  life,  36. 

by  ecclesiastical  persons,  37. 


INDEX.  415 

LEASE — Continued. 

by  husbands,  40. 

under  powers,  42. 

by  guardians  in  socage,  46 

by  testamentary  guardians,  47. 

by  executors  and  administrators,  47. 

by  persons  non  compos,  47. 

by  married  women,  48. 

by  infants,  48,  49. 

by  joint  tenants  and  tenants  in  common,  49,  52. 

by  parish  officers,  50 — 53. 

to  infants,  53, 

to  married  women,  55. 

to  aliens,  56. 

to  denizens,  56. 

mode  in  wlrich  leases  are  made,  60. 

when  they  must  be  by  deed,  60,  62,  68. 
when  by  writing,  60,  62 — 64. 
when  may  be  by  parol  only,  62,  64,  66,  74.  , 
effect  of  8  &  9  Vic.  c.  106,  on  62,  63,  68. 
must  now  be  by  deed,  when  required  to  be  in  writing,  62. 
difference  between,  and  agreements  for  a  lease,  62,  69, 
70—72,  75, 

effect  of  Statute  of  Frauds  on,  22,  65,  66. 
requisites  to  all  leases,  67. 
proper  words  of  demise,  67. 
intention  to  be  looked  to,  69. 
form  of,  under  8  &  9  Vic.  c.  124 ;  67. 
usual  incidents  to,  77. 
the  premises,  77. 
the  recitals,  78. 
the  habendum,  82. 
the  reddendum,  88. 
the  covenants,  94 — 119. 
of  incorporeal  hereditaments,  92. 
of  tithes,  93. 

effect  of  non-execution  of,  by  lessor,  97. 
distinction  between,  void  and  voidable  only,  now  overruled, 

111—114. 
what  covenants  in,  run   with  land  iind  with  reversion,   102, 

207,  286—291. 
effect  of  death  of  lessor  on,  297. 
of  death  of  lessee,  299. 

of  bankruptcy  or  insolvency  of  lessee,  302 — 306. 
determination  of,  80,  215—240. 

by  cffluction  of  time,  216. 
by  surrender,  222 — 233. 


416  INDEX. 

LEASE. —  Continued. 

by  forfeiture,  233. 

by  disclaimer,  233. 

by  notice  to  quit,  234 — 241. 

LESSOKS,  see  Lease. 
who  may  be,  31. 
tenants  in  fee,  31, 

in  tail,  31,  32. 
for  life,  36. 
ecclesiastical  persons,  37. 
husbands,  leasing  wife's  land,  40. 
persons  acting  under  powers,  42. 
guardians  in  socage,  46. 
testamentary  guardians,  46. 
executor  and  administrators,  47. 
persons  non  compos,  37. 
married  women,  48. 
infants,  48. 

joint  tenants  and  tenants  in  common,  49,  52, 
parish  officers,  50 — 53. 
LESSEES,  see  Lease. 
who  may  be,  63. 
infants,  53. 
married  women,  55. 
aliens,  56. 
denizens,  56. 
LICENCE. 

to  assign,  117. 

effect  of,  on  condition  not  to  assign,  117. 
on  covenant  not  to  assign,  117. 
to  remove  fixtures,  274. 
LIFE,  TENANT  FOR. 

nature  of  tenancy,  6. 
leases  by,  36. 

determine  on  their  death,  36. 
cannot  be  confirmed  by  remainder-men,  36. 
apportionment  of  rent,  on  death  of,  36. 
waste  by,  7,  190,  192,  194. 

when  representatives  of,  are  entitled  to  emblements,  250. 
LIME-KILNS. 

exemption  of,  from  distress,  143. 
LIMITATION,  STATUTES  OF. 

how  far  right  to  distrain  is  affected  by,  162,  163. 

as  to  entry  upon  and  recovery  of  land,   19,  20,  27,  162,  163, 

216—221. 
construction  of  statutes,  218 — 221. 
LODGINGS,  see  Furnished  Apartments. 


INDEX.  417 

LOOKING-GLASS. 

not  fiztures,  144. 

LOOMS. 

exemption  of,  from  distress,  144. 
LUNATICS,  see  Idiots. 

majchinery. 

when  distrainable,  143,  144. 
wlien  an  agricultural  fixture,  270. 

erected  for  purposes  of  trade  and  agriculture,  when  removea- 
ble,  270,  271,  272. 
MANURE,  see  Straiv,  262. 
MARLEBRIDGE,  STATUTE  OF,  see  Statutes. 
MARRIED  WOMAN. 
leases  by,  48 

under  power,  48. 
leases  to,  55. 

right  of  waiving,  55. 
not  liable  on  covenants,  55. 

surrender  and  renewal  of  leases  to,  by  Court  of  Chancery,  55. 
assignment  to,  294. 

MERGER. 

interesse  termini  will  not  merge  in  freehold,  13. 

MESNE  PROFITS,  see  Mortgagor  and  Mortgagee. 
MILL  STONES. 

when  exempt  from  distress,  143. 
MINES, 

leases  of,  by  ecclesiastical  persons,  40. 
exception  of,  in  leases,  105. 
what  are  minerals,  105. 
opening  of,  when  waste,  192. 

MINORS,  49. 
MONEY  PAID. 

when  it  lies,  131,  132. 

an  actual  request  not  necessary,  131. 

need  not  be  paid  in  discharge  of  a  debt,  131. 

what  are  voluntary  payments,  132. 

property  tax  paid  by  tenant  cannot  be, recovered  as,  133. 

MONTH. 

tenancy  for  a,  14,  25. 

MORTGAGOR  AND  MORTGAGEE. 

effect  of  claim  by  mortgagee  to  rent,  130,  131,  281. 
whether   tenancy  at  will   exists  between,  within   Limitation 

Acts,  20,  218,  220. 
rights  of  mortgagee  against  tenants  of  mortgagor,  281. 
27 


418  INDEX. 

MORTGAGOR  AND  MORTGAGEE,  continued. 

where  tenancy  began  before  mortgage,  281. 
where  after,  281. 
right  of  mortgagee  to  bring  trespass  for  mesne  profits,  281. 
MORTMAIN. 

alienation  in,  works  a  forfeiture,  106. 

NECESSARIES. 

liability  of  infant  for,  54. 
meaning  of  term,  55. 
NEGLIGENCE,  see  Fire. 

liability  of  tenant  for  fire  caused  by,  199. 
NEW  LEASE,  see   Surrender. 

effect  of  acceptance  of,  225 — ^230. 
NON-PAYMENT  OF  RENT,  see  Re-entry. 
NOT  TO  ASSIGN,  covenant  not  to,  116. 
NOTICE. 

of  distress,  166. 

must  be  in  writing,  167. 
how  to  be  framed,  167. 
where  to  be  left,  167. 

want  of,  does  not  render  distress  invalid,  168. 
eff'ect  of  mistakes  in,  168. 
covenant  to  repair  after,  when  an  independent  covenant,  201. 
to  determine  a  lease  at  end  of  seven  years,  &c.,  86. 
of  intention  to  remove  buildings  and   fixtures  erected   for 

agricultural  purposes,  272. 
of  assignment  of  reversion  must  be  given  to  tenant,  281. 
by  mortgagee  to  tenants  of  mortgagor,  281. 
NOTICE  TO  QUIT. 

by  parish  officers,  53. 

remarks  upon  the  American  Law  of,  235,  n. 

by  joint  tenants,  237. 

on  a  yearly  tenancy,  21,  24,  25,  234. 

monthly  or  weekly,  24,  25,  234,  237. 
on  a  yearly  tenancy  under  an  invalid  lease,  235. 
on  a  yearly  tenancy  arising  from  a  holding  over,  221, 222, 285. 
insufficient,  will  not  amount  to  a  surrender,  224. 
when  to  be  given,  234,  235. 

may  be  on  quarter-day,  234,  235. 
effect  of  custom  of  country  on,  235. 
when  entry  in  middle  of  a  quarter,  236. 
when  diiferent  parts  of  premises  are  entered 

upon  at  different  times,  236. 
when  time  of  entry  is  doubtful,  236. 
how  given,  237. 


INDEX.  419 

NOTICE  TO  QUIT,  Continued. 

may  be  by  parol,  237,  246. 

in  the  alternative,  238,  239,  n. 

effect  of  mistakes  in,  237,  238. 
how  construed,  238,  239,  n. 
service  of,  239,  240,  240,  n. 

in  ordinary  cases,  239. 

by  agent,  240. 

on  joint  tenants,  239. 

on  corporation,  240. 
waiver  of,  111,  240. 

by  receipt  of  rent,  240. 

by  demand  of  rent,  241. 

by  distress  &c.,  240. 

by  tenant,  240. 
by  a  second  notice  to  quit,  241. 

by  other  acts,  241. 

after  an  ejectment  has  been  brought,  24J.. 
what  is  a  sufficient,  to  enable  landlord  to  recover  double  value, 
245. 

double  rent,  246. 
not  necessary  to  determine  extended  occupation  allowed  by 
statute  instead  of  emblements,  249. 
NUKSERY  GARDENER. 

right  of,  to  promote  greenhouses,  &c.,  268. 
trees,  268. 

OCCUPATION,  see  Vse  and  Occupation. 
OFFICES. 

leases  of,  57. 

OPERATION  OF  LAW,  see  Surrender. 
OPTION. 

who  may  exercise,  to  determine  lease,  86. 

of  landlord,  not  to  avoid  a  lease,  112,  113, 114. 

of  assignees  of  bankrupts  or  insolvents  to  accept  lease,  302— 
306. 
OR. 

meaning  of  word,  86. 
ORNAMENTAL  FIXTURES,  see  Fixtures. 
OUTER  DOOR,  see  Door. 
OUTGOING  TENANT,  see  Custom  of  Country/. 

PARISH  OFFICERS. 

leases  by,  50,  53. 

power  of,  over  parish  land,  50. 

under  59  Geo.  3,  c.  12 ;  52 


420  INDEX. 

PARISH  OFFICERS,  Continued. 
leases  to,  52. 
distress  by,  52. 

power  of,  over  parish  property  vested  in  trustees,  52. 
when  entitled  to  legal  estate  in  workhouses,  &c.  53, 
how  leases  by,  should  be  executed,  53. 
notice  to  quit  by,  53. 
PAROL,  see  Lease. 

leases  by,  when  valid,  62,  64,  66. 
notice  to  quit  by,  valid,  237,  256. 
PARSONS,  see  Ecclesiastical  Persons,   Waste. 
leases  by,  37 — 40. 

of  glebe  and  lands  belonging  to  benefices,  38,  39. 
for  farming  purposes,  38. 
for  building  purposes,  40. 
of  canal,  mines,  water-leaves,  &c.,  40. 
liability  of  representatives  of,  for  waste,  193,  194. 
when  entitled  to  emblements,  250. 
PARTIES  TO  A  DEED. 

when  persons  not  named  as,  may  take  benefit  of,  78. 
PAYMENT. 

of  rent,  125. 

time  of,  125. 
mode  of,  127. 
by  cheque,  127. 
by  post,  127. 
by  bill  or  note,  128. 
amount  of,  129. 

remedies  for  enforcing,  136 — 139,  141. 
PERMISSIVE  WASTE,  see  Waste. 
PERSONS  NON  COMPOS,  see  Idiots. 
PETIT  SERJEANTY,  see  Serjeanti/. 
PLAINT,  see  County  Courts,  Replevin. 
PLOUGH. 

beasts  of,  when  distrainable,  149. 
PLOUGH-BOTE. 

what  it  is,  190. 
POSSESSION,  see  Vacant  Possession. 

American  statutes  for  recovery  of,  244,  n.,  245,  n.,  246,  n. 
right  of  landlord  to,  on  determination  of  tenancy,  241 — 241. 
he  may  re-enter  peaceably,  242,  243. 
how  punishable  for  a  forcible  entry,  242. 
■whether  liable  to  an  action,  242. 
adverse,  218,  n. 
POUND,  see  Impounding. 

different  kinds  of,  172. 
pound-breach,  176. 


INDEX.  421 

POUND,  continued. 

summary  jurisdiction  in  cases  of,  176. 
POWER  OF  RE-ENTRY,  see  Reentry. 
POWERS. 

leases  under,  32,  42,  45. 

origin  of,  42. 

leases  under,  supposed  to  be  contained  in  instrument  creating 
power,  44,  45. 

appendant,  44,  45. 

collateral,  44,  45. 

in  gross,  44,  45. 

when  leases  not  in  accordance  with,  are  void,  45. 

confirmation  of  invalid  leases  under,  45. 

receipt  of  rent  under  invalid  leases,  45. 

leases  by  married  women  under,  48. 

PREMISES. 

in  a  lease,  77. 
office  of,  77. 
contain  date,  77,  83. 

and  names,  &c.,  of  parties,  78. 
effect  of  omission  of  name  of  a  party  in,  78. 

PRIVITY  OF  CONTRACT. 

transfer  of,  by  the  32  Hen.  8,  c.  34;  284,  293. 

PRIVITY  OP  ESTATE. 

transfer  of,  293. 

PROPERTY  TAX,  see  Deductions. 

deduction  of,  from  rent,  133. 

when  it  must  be  made,  133. 

contracts  between  landlord  and  tenant  as  to,  99,  100. 
PROTECTION  ACTS,  see  Insolvency. 

effect  of  delivery  up  of  lease,  under,  306. 

PROVISO,  see  Condition. 
what  it  is,  105. 

QUARE  EJECIT. 

origin  of  writ  of,  9. 

QUARRY. 

stones  in,  when  minerals,  105. 

QUIA  EMPTORES,  STATUTE  OF,  see  Statutes. 
QUIET  ENJOYMENT. 

implied  and  express  contracts  for,  206 — ^214. 

construction  of  contracts  for,  206 — 214. 

when  contract  for,  implied  from  word  "demise,"  207. 

no  covenant  implied  from  words  "give"  or  "grant,"  68,208. 

effect  of  express  contracts  for,  206 — 213. 


422  INDEX. 

QUIET  ENJOYMENT,  continued. 

remedies  for  disturbance  in,  209. 

what  acts  amount  to  a  breach  of  contract  for,  210 — 213. 

where  disturbance  by  title  paramount,  210 — 

213. 
where  disturbance  by  a  mere  stranger,  211. 
effects  of  express  contracts  against  eviction,  212 — 214. 
covenant  for,  runs  with  land,  288. 

in  America,  288. 
QUIT-RENT,  see  Rent. 

RAILWAYS. 

leases  of,  by  ecclesiastical  persons,  40. 
RATIFICATION. 

of  bailiff's  authority  to  distrain,  164,  165. 
RECEIPT. 

in  a  deed  operates  as  an  estoppel,  81. 
otherwise,  if  on  back  of  deed,  81. 
of  rent,  when  a  waiver  of  forfeiture,  109,  113,  114. 
when  a  waiver  of  notice  to  quit,  240. 
RECITALS. 

effect  of,  in  a  deed,  78. 

when  they  create  an  estoppel,  79,  80. 

where  they  are  intended  to  be  the  words  of  one  party 
only,  80. 

RECTOR,  see  Ecclesiastical  Persons,  Parson. 
REDDENDUxM,  see  Rent. 
office  of,  88. 

different  kinds  of  rent,  88 — 90. 
rent  cannot  be  reserved  out  of  incorporeal  hereditament,  91. 

except  by  Crown,  93. 
how  it  shall  be  framed,  94. 
RE-ENTRY. 

power  of,  108. 

not  assignable,  108. 

effect  of  omission  of  word  "  re-enter"  in,  108. 
how  exercised,  109 — 112. 
waiver  of  right  of,  109. 

by  receipt  of  rent,  109. 
by  demand  of  rent.  111. 
by  other  acts,  110. 
effect  of  bringing  ejectment  to  enforce  forfeiture,  110. 
where  covenant  broken  is  a  continuing  covenant,  110. 

non-insurance,  100,  101,  110. 
upon  non-payment  of  rent,  119. 

at  common  law,  119. 


INDEX.  423 

RE-ENTRY,  continued. 

by  statute,  120. 

half  a  year's  rent  must  be  in  arrear,  120. 

no  sufficient  distress,  120. 

search  for,  120. 

demand  of  rent,  when  necessary,  121. 

REMAINDER-MEN,  see  Confirmation. 

when  bound  by  leases  of  tenants  in  tail,  31,  35. 
not  bound  by  leases  of  tenants  for  life,  36. 

REMEDIES,  see  Action,  Distress,  Ejectment,  Replevin. 
for  enforcing  payment  of  rent,  136,  141. 
of  tenant  for  a  wrongful  distress,  180. 

where  distress  irregular,  180. 

where  no  right  to  distrain,  182. 

where  distress  by  a  stranger,  182. 

where  landlord  distrains  improperly,  182. 

by  action  of  replevin,  182 — 185, 

when  trespass  will  lie,  181. 

when  trover,  181. 

when  no  rent  at  all  due,  182. 

against  landlord  for  disturbance  in  possession 
and  quiet  enjoyment,  205 — 214. 
of  landlord  for  non-repair,  &c.,  204,  205. 

for  improper  cultivation,  &c.,  203,  204. 

REMOVAL,  see  Fixtures,  Replevin. 

of  proceedings  in  replevin  into  Superior  Courts,  183 — 185. 

of  fixtures,  when  it  must  be  made,  272 — 274. 
RENEWAL. 

of  leases  by  ecclesiastical  persons,  38. 

surrender  for  purpose  of,  232. 

covenant  for,  runs  with  land,  288. 

RENT,  see  Distress,  Lease. 

arrears  of,  whether  such  a  lien  as,  is  discharged  by  sheriff's 

sale  of  house,  306,  n. 
ancient,  must  be  reserved  on  leases  by  tenants- in  tail,  34. 
nature  of,  88, 128. 
different  kinds  of,  88—90. 
what  constitutes  a  rent,  88. 
rent-service,  89,  90,  94. 
rent-charge,  89,  90. 
rent-seek,  89. 

whether  it  can  issue  out  of  a  term  of  years,  102. 
fee-farm  rent,  89. 
quit-rent,  90. 

must  be  certain,  95, 161,  162. 
amount  of  certainty  requisite,  95,  162. 
must  not  be  part  of  thing  demised,  91. 


424  INDEX. 

RENT.— roTi/mwef?. 

may  be  a  certain  portion  of  the  annual  produce,  91,  n. 
cannot  issue  out  of  incorporeal  hereditament,  91 — 93. 

when  such  reservation  binding  as  a  con- 
tract, 91,  92. 
exceptions  to  rule,  62. 
effect  of  demise  of  two  things,  one  of  which  will  not  support  a 

rent,  92. 
effect  of  illegality  of  letting  as  to  part  of  premises,  92. 
may  be  reserved  on  a  reversion,  93. 
must  be  reserved  to  lessor,  94. 
effect  of  reservation  to  a  stranger,  95. 
covenants  to  pay,  96. 

effect  of  receipt  of,  on  forfeiture,  109,  113,  114. 
effect  of  distress  for,  on  forfeiture,  114,  115. 
re-entry  for  non-payment  of,  119. 

at  common  law,  119. 
by  statute,  120. 
rights  of  landlord  as  to  payment  of,  125. 
time  at  which  it  is  payable,  125 — 127. 
demand  of,  in  order  to  create  a  forfeiture,  125. 
tender  of,  to  prevent  a  forfeiture,  126. 
mode  of  payment  of,  127. 
to  an  agent,  127. 
by  post,  127. 
by  cheque,  127. 
high  nature  of  demand  for,  128. 
effect  of  taking  a  note  in  payment  of,  128. 

of  giving  a  bond  for,  128. 
remedies  for  enforcing  payment  of,  136 — 138,  141. 
tenant  still  liable  to  pay,  though  premises  destroyed  by  fire, 

140,  202. 
what  agreements  amount  to  an  excuse  for  non-payment  of,  224. 
apportionment  of,  36,  133,  134 — 138,  248. 
on  eviction,  212,  213. 
RENT-CHA.RGE,  Rent. 
RENT-SECK,  see  Rent. 

whether  it  can  issue  out  of  a  term  of  years,  162. 
distress  for,  89,  80. 
RENT-SERVICE,  see  Rent. 
REPAIRS  see  Underlessees,  Waste. 

rights  of  landlord  as  to,  188—202. 

no  implied  obligation  on  landlord  to  repair,  196,  206. 

no  implied  warranty  that  the  premises  are  fit  for  the  purpose 

for  which  they  are  let,  206. 
when  an  implied  obligation  on  tenant  to  do,  189 — 199. 
no  implied  obligation  on  tenant  where  express  contract,  201. 


INDEX.  425 

UEPAl'RS.— Continued. 

express  contracts  by  tenant  as  to,  199,  201. 
how  constructed,  200. 
run  with  land,  288. 
meaning  of  term  "  good  repair."  200. 
how  far  age  of  premises  can  be  objected  to,  200. 
what  are  conditions  precedent  to   tenant's 

liability  to  do,  200, 201. 
when  tenant  bound  to  rebuild  after  fire,  201, 

202. 
damages  recoverable  on,  201. 

where  term  still  unexpired,  201. 
where  a  lease  and  a  sub-lease,  and 
lessee  has  been  sued  by  superior 
^  landlord,  201,  202. 

whether  costs  of  first  action  recov- 
erable, 202. 
contracts  to  keep  in  repair,  200. 

to  repair  after  notice,  201. 
when  an  independent  covenant,  201. 
KEPLEVIN. 

nature  of  action,  182,  183. 

mode  of  pleading  in,  130. 

when  it  lies  for  goods  distrained  after  tender  of  rent,  176. 

proceedings  in,  at  common  law,  183. 

under  Statute  of  Marlebridge,  184. 
jurisdiction  of  County  Courts  in,  183. 

not  limited  by  value  of  goods. 

removal  of  proceedings  in,  if  distress  exceeds  20Z., 

183. 
or  title  in  question,  183. 
sureties  in,  184. 
bond,  184,  185. 

assignment  of,  185. 
how  broken,  184,  185. 
prosecution  of  suit  with  efi^ect,  &c.,  184. 
judgment  in,  185. 

for  defendant,  when  plaintifi"  is  nonsuited,  185, 186. 
KESEEVATION. 

distinction  between,  and  exception,  91,  103,  104. 
REVERSION,  see  Assignment. 

rent  may  be  reserved  on,  93. 

landlord  must  have,  in  order  to  distrain,  162. 

rights  of  assignee  of,  282 — 297. 

expectant  on  a  lease  not  destroyed  by  surrender,  232. 

efi"ect  of  assignment  of  part  of,  296. 

of  assignment  of,  in  part  of  land,  296. 


426  INDEX. 

REVERSIONER,  see  Assignment,  Reversion. 

wlien  bound  by  leases  of  tenant  in  tail,  35. 
of  tenant  for  life,  36. 
right  to  convey,  288. 
RIGHTS  OF  LANDLORD. 

as  to  repairs,  189 — 202. 

as  to  cultivation,  203,  204. 

on  determination  of  tenancy,  241 — 246,  248 — ^276. 

RIGHTS  OF  TENANT. 

to  possession  and  quiet  enjoyment,  205 — 214. 

no  implied   contract  by  landlord  that   premises  are  fit  for 

habitation,  206. 
on  determination  of  tenancy,  247 — 276. 

as  to  emblements,  247 — 256. 

way-going  crops,  256 — 262. 

fixtures,  262—276. 

SALE. 

of  cattle  distrained  for  expenses  of  food,  &c.,  174. 
notice  of,  174. 

what  must  be  done  with  proceeds,  174. 
of  distress,  178,  179. 

how  five  days  are  to  be  reckoned,  178. 
'how  to  be  conducted,  178,  179. 
appraisement,  178,  179. 
of  growing  crops,  150. 
of  hay,  straw,  &e.,  150,  151. 

in  cases  of  bankruptcy  or  insolvency,  151,  305. 
SECOND  DISTRESS,  see  Distress. 

when  it  may  be  made,  173,  164. 
not  if  rent  could  have  been  obtained  under  first,  164. 
SECOND  NOTICE  TO  QUIT. 
effect  of,  241. 

SECURITY  FOR  RENT. 

effect  of  taking,  128,  129. 

on  right  to  distrain,  159. 
SEIZURE,  see  Crops,  Distress. 
of  distress,  166. 

when  goods  fraudulently  removed,  168,  169. 
of  crops,  under  a  distress,  149. 
eizin  covenant  of,  288,  n. 

under  an  execution,  150,  151. 

SERJEANTY. 

holding  by,  3. 

now  in  effect,  a  socage  tenure,  3. 
SEWER' S-R ATE,  see  Taxes. 


INDEX.  427 

SHEEP,  when  privileged  from  distress,  149. 

SHERIFF,  liability  of,  for  taking  insufficient  securities  in  replevin, 
184. 

SMALL  TENEMENTS  ACTS. 

proceedings  under,  243. 

in  County  Courts,  243,  244. 
when  landlord  liable  in  trespass  for,  243. 
warrant  of  possession  under,  244. 
SOWING-,  see  Cultivation. 

of  land  with  improper  crops,  injunction  against,  205. 
STAMPS. 

on  agreements,  72. 
on  leases,  73. 
on  receipts,  127. 

not  required  on  warrant  of  distress,  164. 
STATUTES  OF  FRAUDS,  see  Statute. 
effect  of,  on  leases,  62,  65,  66. 

on  agreements,  62.  , 

for  American  Law,  see  note  p.  64. 
on  surrenders,  224. 
when  yearly  tenancy  arises  on  leases  void  under,  22,  65. 
STATUTE  OF  USES,  see  Uses  Statutes. 
STATUTES. 

51  Hen.  3,  st.  4...149. 

of  Marlebridge,  (52  Hen.  3,)  c.  4  ...  174. 

c.  15...  153,  154. 
c.  21...  184. 
c.  23  ...191. 
of  Glouster,  (6  Ed.  1,  c.  5) ...  191. 
of  Westminster,  the  2nd  (13  Ed.  1,  c.  2) ...  184, 
of  Quia  Emptores,  (18  Ed.  1,  c.  1)  ...  5,  90. 
of  Uses,  (27  Hen.  8,  c.  10) ...  14,  42,  43. 
82  Hen.  8,  c.  7. ..93. 
32  Hen.  8,  c.  28  ...33. 
32  Hen.  8,  c.  34 ...  284,  288,  294. 
1  Eliz.,  c.  19  ...  37. 
13  Eliz.,  c.  10  ...37. 
14  Eliz.,  c.  11...37. 
14  Eliz.,  c.  14...37. 
18  Eliz.,  c.  11...37. 
43  Eliz.,  c.  9.. .37. 

1  Jac.  1,  c.  3. ..37. 
12  Car.  2,  c.  24...46. 
17  Car.  2,  c.  7...185. 

29  Car.  2,  c.  3...62,  65,  66,  224,  281,  282. 

2  Wm.  &  M.,  s.  1,  c.  5,...150,  166,  171,  177,  182. 
4  Anne,  c.  16...278,  280. 


428  INDEX. 

STATUTES.—  Continued. 

6  Anne,  c.  31...195,  198. 

8  Anne,  c.  14...115,  154,  160. 

10  Anne,  c.  14...198. 

4  Geo.  2,  c.  28. ..89,  90,  120,  150,  233,  244. 

11  Geo.  2,  c.  19...134,  135,  139,  149,  150,  154,  155, 156, 

159, 162, 169, 171, 175,  177,  180,  181, 
184,  185,  244,  245. 

12  Geo.  3,  c.  73...198. 

14  Geo.  3,  c.  78...198,  199,  202. 
43  Geo.  3,  c.  75.. .47. 
43  Geo.  3,  c.  126... 127. 
51  Geo.  3,  c.  64...278. 

56  Geo.  3,  c.  50. ..150,  305. 

57  Geo.  3,  c.  52.. .244. 
57  Geo.  3,  c.  93.. .179. 
59  Geo.  3,  c.  12.. .52. 

6  Geo.  4,  c.  16.. .303,  304. 
11  Geo.  4  and  1  Wm  4,  c.  65.. .47. 

3  &  4  Wm.  4,  c.  27...19,  26,  162,  163,  197,  204,  217,  218, 
not  adopted  in  the  U.  S.,  p.  218,  n. 
3  &  4  Wm.  4,  c.  42...163. 

3  &  4  Wm.  4,  c.  74.. .6. 

4  &  5  Wm.  4,  c.  22...135. 

5  &  6  Wm.  4,  c.  59.. .173. 

5  &  6  Wm.  4,  c.  69. ..52. 

6  &  7  Wm.  4,  c.  20...38. 
6  &  7  Wm.  4,  c.  64...38. 

6  &  7  Wm.  4,  c,  71.. .93,  133,  138. 

1  &  2  Vic,  c.  74.. .232. 

1  &2  Vic,  c.  110. ..305,  306. 

5  &  6  Vic,  c  27...38. 

5  &  6  Vic,  c.  85.. .133. 

5  &  6  Vic  c  97... 186. 

5  &  6  Vic,  c.  108. ..38,  39. 

5  &  6  Vic,  c  116...306. 

6  &  7  Vic,  c  30. ..176. 

7  &  8  Vic,  c  66. ..57. 

7  &  8  Vic,  c  76.. .63,  222. 
7  &  8  Vic,  c  84.. .199. 

7  &  8  Vic,  96...306. 

8  &9  Vic,  c  18. ..138. 

8  &  9  Vic,  c  106...23,  32,  58,  62,  68,  72,  78,  97,  108,  208, 

224,  232,  282,  288. 
8  &  9  Vic,  c.  119.. .97. 

8  &  9  Vic,  c  124.. .67,  97. 

9  &  10  Vic,  c  95...183,  184,  243,  306. 


INDEX.  429 

STATUTES.—  Continued. 

lO&ll  Vic.,c.  83...57. 
lO&ll  Vic,  c.  102...306. 
12  &  13  Vic,  c  26...45. 

12  &  13  Vic,  c  106...303,  304,  305. 

13  Vic,  c  17...45. 

13  &  14  Vic,  c  60...5. 

13  &  14  Vic,  c  97...72. 

14  &  15  Vic,  c.  25...20,'  138,  148,  150,  248,  251,  270,  271, 

272. 

14  &  15  Vic,  c  74...40. 

15  &  16  Vic,  c  76...10,  120,  139,  176,  181. 

16  &  17  Vic,  c  59  ..127. 

17  &  18  Vic,  c  32...138. 
17  &  18  Vic,  c  83.. .73. 

17  &  18  Vic,  c  125...182,  205. 
STOCKING-FRAMES. 

when  fixtures,  143. 
STRAW,  see    Crops.  ^ 

seizure  of,  under  distress,  150. 
sale  of,  by  sheriflF,  under  execution,  150,  151. 
if  seized  under  distress,  cannot  be  sold  to  be  consumed  on 

premises,  152. 
eflfect  of  custom  on  liability  of  tenant  to  leave,  on  premises, 

258,  261. 
sale  of  bay,  straw,  &c,  under  bankruptcy,  151,  305. 
under  insolvency   151. 
SUFFERANCE. 

tenancy  at  25,  29,  217,  219. 

cannot  exist  against  Crown,  25. 
when  it  arises,  25,  26,  29,  217. 
cannot  be  conveyed,  26. 
never  arises  by  contract,  26. 
SUFFICIENT  DISTRESS,  see  Re-entry. 
SURETIES,  see  Replevin. 

sheriff  responsible  for  taking  insufficient,  in  replevin,  184. 
SURRENDER  OF  LEASE. 
meaning  of  term,  222. 
operation  of,  223. 
express,  223. 
implied,  225  n. 
at  common  law,  224. 
by  parol,  225  n.,  231  n, 

since  Statute  of  Frauds,  and  8  &  9  Vic  c  106 ;  224,  225  n. 
when  it  must  be  by  deed,  62,  224. 
infutxiro,  224. 
by  act  and  operation  of  law,  225,  228—281. 


430  INDEX. 

SURRENDER  OF  'LEASE.— Continued. 
taking  a  new  lease,  225,  231  n. 

a  mere  agreement  for  a  new  demise  will 

not  operate  as,  225. 
effect  of  invalidity  of  new  lease,  226. 
by  other  acts,  226. 
recent  decisions  as  to,  228 — 230. 
rights  of  third  parties  not  affected  by,  231. 

effect  on  underleases,  231. 
on  annuities,  231. 
effect  of,  on  rights  of  surrenderor,  231. 
merger  of  reversion,  232. 

rights  incident  to  reversion  now  preserved  by 
statute,  232. 
on  liability  of  surrender,  232. 
for  purpose  of  renewal,  232,  233. 

statutory  preservation  of  remedies  against  un- 
derlessees,  233. 
of  unprofitable  premises,  by  an  executor,  300. 
SUSPENSION. 

of  right  to  destrain,  128. 
of  rent  by  eviction,  212. 
not  by  a  trespass,  211. 

TAIL,  TENANT  IN. 

nature  of  tenancy,  6. 

how  barred,  6. 

after  possibility  of  issue  extinct,  7. 

right  of,  to  cut  timber,  7. 

leases  by,  32. 

when  they  bind  issue,  32. 

effect  of  receipt  of  rent  by  issue,  33. 

under  Enabling  Statute,  33 — 35. 

Fines  and  Recoveries  Act,  35,  86. 
TAXES,  see  Covenant. 

effect  of  covenants  to  pay,  98,  99, 
what  is  a  parliamentary  tax,  99. 

parochial,  99. 
liability  to  pay  sewer's  rate,  99. 

income  and  property  tax,  99. 
tithe  rent-charge,  100. 
TEMPEST,  see  Act  of  God,  Waste. 

TENANCY,  see  Curtesy,  tenant  hy ;  Fee-simple,  tenant  in ;  Lessors; 
Lessees;   Life,  tenant  for  ;   Tail,  tenant  in;    Tenants  in 
common  ;    Years,  tenant  for  ;   Year  to  Year  ;  Weekly  ten- 
ancy ;    Will,  tenant  at, 
TENANT'S  FIXTURES,  see  Fixtures. 


INDEX.  431 

TENANTS  IN  COMMON. 

TENANTS  cannot  dispute  Landlord's  title,  234,  n. 

leases  by,  49. 

how  they  operate,  49,  51. 

whether   they  must  sue  jointly  or  separately  on  covenants, 
49,  50,  51. 

how  they  must  avow,  52. 
TENDER. 

of  rent  to  prevent  a  forfeiture,  126. 
to  prevent  a  distress,  176. 

effect  of,  before  the  impounding,  176. 
after  the  impounding,  176. 

of  amends,  when  distress  irregular,  181. 
TENURES. 

general  view  of,  1. 

introduction  of  present  system  of,  2. 

in  America,  6.  n. 
TERM. 

duration  of,  how  measured,  83,  84,  85. 

effect  of  habendum  in  fixing,  83. 

when  to  begin  from  date  of  lease,  83,  84. 

when  from  day  of  date,  83,  84. 

may  run  from  one  date  in  computation,  and  from  another  in 
interest,  85. 

option  to  determine,  at  end  of  a  certain  time,  86. 
who  may  exercise  it,  86. 

determination  of,  215 — 240. 
TERMINATION  OF  CONTRACT,  see  Determination. 
TESTAMENTARY  GUARDIANS. 

leases  by,  46. 

difference  between,  and  guardians  in  socage,  47. 
TILLAGE,  see  Cultivation,  Custom  of  Country. 
TIMBER. 

cutting  of,  by  tenants  for  life,  7,  194. 

by  tenants  in  tail,  7. 

exception  of,  in  leases,  104. 

felling  of,  when  waste,  192 — 194. 
TITHE  RENT-CHARGE,  see  Covenant,  Tithes. 

effect  of  covenants  to  pay,  98. 

right  of  tenant  to  deduct  from  rent,  100,  133. 

remedy  of  succeeding  tenant,  100. 

contracts  respecting,  between  landlord  and  tenant,  99, 100, 133. 

neither  landlord  or  tenant  personally  liable  for,  100. 

apportionment  of,  137. 
TITHES,  see  Tltlie Rent-Charrje. 
leases  of,  93. 

cannot  now  be  made,  93. 
right  of  tenant  to  deduct  tithe  rent-charge  from  rent,  93. 


432  INDEX. 

V 

TITLE. 

when  contract  for,  implied  on  a  demise,  207. 

right  of  tenant  to  dispute  landlord's,  81,  245. 
TITLE-DEEDS. 

covenant  to  produce,  runs  with  land,  290. 
TRADE, 

covenant  not  to  carrry  on  offensive,  101. 

goods  left  in  way  of,  not  distrainable,  145,  147. 

implements  of,  when  distrainable,  147,  149. 
TRADE-FIXTURES,  see  Fixtures. 
TRAM-ROADS. 

leases  of.  by  ecclesiastical  persons,  40. 
TREES,  see  Exception. 

exception  of,  in  leases,  103. 

growing  in  a  nursery  ground,  not  distrainable,  152. 

removable  by  tenant,  268. 

cutting  down  of,  when  waste,  192 — 194. 

emblements  not  claimable  out  of,  253. 
TRESPASS. 

tenant  cannot  bring,  before  entry,  13, 14. 

when  it  may  be  brought  with  respect  to  goods,  14. 

may  be  brought  although  tenant  does  not  personally  occupy 
land,  14. 

effect  of  death  of  tenant  for  life  on  his  tenant's  right  to 
bring,  14. 

when  it  lies  against  landlord  for  abuse  of  distress,  171,  172, 
176,  181. 

for  continuing  on  premises  after  distress,  176. 
when  he  is  liable  in,  for  acts  of  broker,  181. 

by  lessor,  does  not  suspend  rent,  211. 

effect  of,  on  lessee  by  a  stranger,  211. 
TRESPASSER  AB  INITIO. 

when  landlord  becomes,  by  abuse  of  distress,  &c.,  171,  172, 
176,  180,  181. 
TROVER. 

will  not  lie  for  unsevered  fixtures,  145,  273,  274. 

will  not  lie  for  goods  distrained  if  any  rent  due,  181. 

when  goods  can  be  recovered  in  specie,  182. 

UNDERLEASE,  see  Underhtting. 
UNDERLESSEES,  see  Deductions,  Repairs. 
rights  of,  between  themselves,  132. 

rights  of,  when  compelled  to  pay  rent,  or  distrained  on  by  su- 
perior landlord,  129, 130. 
liabilities  of,  to  their  lessor,  201,  202. 

in  cases  of  non-repair,  201,  202. 


INDEX.  433 

UNDERLETTING,  see  Underlessees. 

when  a  breach  of  a  covenant  not  to  assign,  116. 

distinction  between  conditions  not  to  underlet,  and  not  to 
assign,  118. 
USE  AND  OCCUPATION. 

does  not  lie  before  entry,  13,  140,  n. 

will  not  lie  unless  there  is  a  contract,  18,  139,  140. 

at  common  law,  139. 

by  statute,  139. 

not  defeated  by  showing  a  demise  not  under  seal,  139. 

when  it  lies  if  possession  is  under  a  contract  of  sale,  139. 

liability  of  tenant  for,  when  premises  destroyed  by  fire,  140. 

actual  entry  necessary,  140, 

what  a  sufficient  occupation,  140. 

occupation  need  not  be  personal,  140. 

effect  of  holding  over,  by  one  of  two  lessees,  141. 

right  of  defendant  to  show  that  landlord's  title  has  expired, 
141. 

against  assignees  of  bankrupt,  303. 
USES,  see  Statutes. 

statutes  of,  42,  43. 

origin  of,  42,  43. 

execution  of,  43. 

cannot  be  limited  on  an  use,  43. 

VACANT  POSSESSION. 

proceedings  to  recover  premises  when  deserted,  244. 
examination  of,  by  judges  of  assize,  244. 
VALUATION. 

of  fixtures,  272,  275. 
VALUE,  see  Double  Value. 
VOID  LEASE,  see  Year  to  Year. 

holding  under,  63,  222. 
VOLUNTARY  WASTE,  see  Waste. 

WAIVER,  see  Forfeiture,  Notice  to  quit. 
of  forfeiture,  109—114. 
of  notice  to  quit,  111,  240—241. 
WARRANT,  see  Distress. 
of  distress,  164. 

does  not  require  a  stamp,  164. 
how  framed,  164. 
should  be  signed  by  landlord,  164. 
authority  of  bailiff  under,  165. 
by  one  joint  tenant,  164. 
where  part  of  claim  is  legal,  part  illegal,  164. 
28 


434  INDEX. 

WARRANT.— 6W<mM«Z.  l 

effect  of  ratification,  164,  165. 
of  possession  under  Small  Tenements  Acts,  244. 
WARRANTY. 

none  implied  on  a  demise,  206.  / 

WASTE,  see  Impeachment  of  Waste. 
at  common  law,  190 — 192. 
American  doctrine,  192,  n.  185,  n. 
difference  with  respect  to,  in  estates  created  by  law,  and  by 

contract,  190. 
by  statute,  191. 
voluntary,  192,  193. 
permissive,  192 — 194. 

by  tenant  in  tail  after  possibility  of  issue  extinct,  7. 
tenant  ^t  will  cannot  commit,  17. 
by  tenant  by  the  curtesy,  191. 
by  tenant  in  dower,  191. 
by  tenants  for  life,  7,  190,  192. 

what  acts  amount  to,  192,  193. 
cutting  of  trees  by,  192,  193. 
taking  of  timber  by,  194. 
allowing  walls  to  become  ruinous,  194. 

river  banks, 

192,  194. 

when  liable  for  damage  done  by  tempest, 

&c.,  194,  195. 
effect  of  express  contracts  against  195. 
destruction  of  house  by  fire,  195. 
liability  for,  of  representatives  of  a  parson,  193,  194. 
by  tenants  for  years  and  at  will,  17,  195,  197. 

when  liable  for  permissive,  195,  196. 
for  voluntary,  198. 
power  of  Courts  of  Law  and  of  Equity  to  grant  injunctions 

against,  197,  204,  205. 
by  accidental  fire,  198. 

effect  of  statute  of  6  Anne,  c.  31,  and  14  Geo.  3,  c.  78 ; 
198,  199. 
effect  of  demise  without  impeachment  of,  204. 
action  of  205. 

action  on  case,  in  nature  of,  205. 
effect  of  express  contracts  against,  199. 

liability  of  tenant  to  repair  after  fire,  201. 
WATER-LEAVES. 

leases  of,  by  ecclesiastical  persons,  40. 
WAY,  see  ITlghway. 
WAY-GOING  CROP,  see  Craps,  258,  n. 


INDEX.  435 

WAY-LEAVES. 

lease  of,  by  ecclesiastical  persons,  40. 
WEEKLY  TENANCY. 

notice  to  quit  on,  234,  237. 
WESTMINSTER,  STATUTE  OF,  see  Statutes. 
WIFE,  see  Husband  and  Wife. 
WILL,  TENANT  AT. 

nature  of  tenancy,  15,  29. 
determination  of  tenancy,  16. 

by  what  acts  of  tenant,  16,  17. 
by  what  acta  of  landlord,  16,  17. 
by  assignment,  17. 
effect  of  insolvency  of  tenant,  17. 
cannot  commit  waste,  17,  195,  197. 
when  tenancy  arises  by  implication,  18,  29. 

when  possession  under  a  contract  of  sale,  139. 
tenancy  not  assignable,  19. 
in  the  United  States,  19,  n. 

when  it  may  be  extended  into  a  yearly  tenancy,  19. 
statutory  limitation  on  right  to  recover  land,  when  a  tenancy 

at  will  exists,  19,  20,  218—221. 
distress  on,  162. 
when  mortgagors  tenants  at  will,  within  Limitation  Acts,  20, 

218,  220. 
when  he  may  claim  emblements,  250,  251. 
WOODS,  see  Exception,  Timber,    Trees. 
exception  of,  in  leases,  103,  104. 
YEARS,  TENANT  FOR,  see  Year  to  Year. 
origin  of  tenancy,  8. 
in  ancient  times  had  no  estate  in  land,  9. 
could  not  bring  an  action  for  land,  9. 
remedy  by  ejectment,  when  given,  10,  11. 
nature  of  tenancy  of,  12,  14. 

must  be  for  a  time  certain,  12,  14,  18. 
may  be  for  less  than  a  year,  14. 
tenant  must  enter,  12. 

till  entry,  he  has  only  an  iuteresse  termini,  13. 
cannot  bring  trespass  before  entry,  13,  14. 
effect  of  release  to  him  before  entry,  13. 

of  assignment  by  him  before  entry,  13. 
of  release  by  him  before  entry,  13. 
entitled  to  enter  notwithstanding  lessor's  death,  13. 
his  executor  may  enter,  13. 

not  liable  for  use  and  occupation  before  entry,  13,  140. 
may  bring  trespass,  although  not  in  personal  occupation,  14. 
tenancy  of,  always  created  by  express  contract,  18. 
time  at  which  tenancy  is  to  end  must  be  prefixed,  15,  18. 


436  INDEX. 

YEARS,  TENANT  FOU.— Continued. 

notice  to  quit  by,  21,  24. 

YEAR  TO  YEAR,  see  Years,  tenant  for. 

origin  of  tenancy  from,  20 

emblements  on,  20. 

notice  to  quit  on,  21,  24,  221,  234—244. 

has  reference  to  length  of  holding,  24,  234. 
when  implied  from   payment  of  rent,  21 — 23, 
65,  66. 
from  admission  of  rent  in  account,  23. 
against  a  corporation,  38. 
how  far  circumstances  may  be  explained,  24. 
assignment  of,  23. 

after  entry  under  a  void  lease,  63,  221. 
when  it  arises  on  a  holding  over,  23,  24,  63,  219 
—221. 

how  far  terms  of  lease  can  be  applied  to  it, 
66,  73,  203,  221,  222. 
provisions  as  to  cultivation,  74,  203,  222. 
notice  to  quit  on,  221,  222. 
tenancy  for  two  years  certain,  236. 
YIELDING    AND    PAYING— These  words    create    an    implied 
covenant  to  pay  rent,  96. 


THE    END. 


I' 


AA    000  851  461     4 


;^«Sc#«v>  -^ 


